Cornell University Law Library. k'CMc 1 >in Cornell University Library KFN5140.A332F78 1904 ™e real property law of the state of Ne 3 1924 017 829 742 B Cornell University S Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017829742 THE REAL PROPERTY LAW OF THE STATE OF NEW YORK Being Chapter Korty-six of the General La-ws (Passed May 12, 1896; Chapter 547, Laws of i8g6.) WITH ALL THE AMENDMENTS THERETO TOGETHER WITH THE REPORT OF THE COMMISSIONERS OF STATUTORY REVISION THEREON, THE NOTES OF THE ORIGINAL REVISERS OF THE REVISED STATUTES ON THE ORIGINAL ACTS, AND THE FULL TEXT OF ALL THE STATUTES CODIFIED IN THE REAL PROPERTY LAW AN INTRODUCTION, NOTES OF JUDICIAL DECISIONS, AND COMMENTS, EXPOSITORY AND HISTORICAL, ON THE TEXT OF THE STATUTES BY ROBERT LUDLOW FOWLER COUNSELLOR AT LAW Second Edition, Revised and Enlarged by the Autlior NEW YORK BAKER, VOORHIS & COMPANY 1904 COPYRIGHT, 1899, By ROBERT LUDLOW FOWLER COPYRIGHT, 1904, By ROBERT LtJDLOW FOWLER PREFACE TO SECOND EDITION. The very gratifying reception accorded this treatise by the Courts and the Bar has induced the publishers, after an interval of more than five years, to issue a second edition, containing among other changes and additions all statutory amendments to The Real Prop- erty Law, down to the close of the 127th session of the Legislature in 1904. The author determined that this edition of The Real Property Law should not be a mere reprint, but a virtually new work. He has taken occasion, therefore, in this edition, not only to correct the original text, but to amplify it in every way which he con- ceived would make it more useful to those for whom it was de- signed. Thousands of citations have been added to the very full citations contained in the first edition, while many new topics, such as " The Law of Waters," " Charge on Lands," " Covenants Run- ning with the Land " are included and discussed. The original design of the author was to furnish a systematic treatise on the text of the greatest of the real property statutes of this State, showing the history and the development of such statute,, its connection with the old law, and the substance of the leading- adjudications on its text. In so considerable an undertaking, it will' not be extraordinary if the result fall short of the author's design. New York, October i^th, 1904. [ili] PREFACE TO FIRST EDITION. This volume contains, among other material, not only all the text of the existing statute of this State, designated " The Real Property Law," but also the entire text of all the other statutes from which that most important act is taken. It was believed by the editor that it would conduce to a more orderly arrangement of the subject- matter and to an easier reference, if the various sections of The Real Property Law might be uniformly placed at the head of successive pages ; thus subordinating the prior repealed statutes and the mere notes and comments of the editor to the text of the far more im- portant and living law. The paramount importance of The Real Property Law itself seemed to justify such an arrangement, if it were feasible. The place of emphasis is always the place of begin- ning, and each section of The Real Property Law is in reality treated by the editor as the subject of an independent chapter of this work, and, therefore, should be placed at the head of a page. To be sure, some of such chapters are necessarily most brief, and it would have been improper from their nature to extend them. Consequently, and not infrequently, a succession of short pages, very disturbing to the publishers, is one result of the editor's arrangement. But to the mind of the editor, the appearance of a volume of this character is of less consequence than its utility, and so he ventured to persist in his own plan of arrangement, without regard to custom or the sesthetical canons of the printer's art. How far the arrangement actually adopted will be justified by the legal profession, only their use of the book can ultimately determine. Of one thing at least the writer feels entirely confident — that the reader will, if he fairly examine the subject-matter, admit that the arrangement actually adopted was not designed to enlarge the volume beyond its normal limits. The arduous labor of the editor, which is so readily apparent, ought at once to acquit him of any motive to extend the work beyond the barest limits dictated by pro- fessional and technical necessity. [v] vi Preface to First Edition. The editor feels also assured that the generous reader will, upon reflection, not complain that many of his notes and comments, con- tained in this work, dwell upon the early stages of the law of real property. Without an exact knowledge of the history of a statute, the younger lawyer, at least, is poorly equipped for argument on even the " last case " involving it. Aside from this consideration, the constant reference to the origins of the law of real property in late cases, it is confidently submitted, justified the writer in adopting the historical method of exposition. In a like connection, it has been well said by Bryce, in his masterly and probably greatest work, The Holy Roman Empire [p. 3], "to explain a modern act of Parlia- ment, or a modern conveyance of lands, we must go back to the feudal customs of the thirteenth century." No abler justification than this can be adduced. The reader may readily find in this one volume the text of The Real Property Law, the text of the original statutes displaced by that law or consolidated in it, and also all the existing reports and notes of the framers of all such laws. This collection of original matter, in itself, it is thought, will result in a considerable saving of professional labor and time. The reports and the notes of the several revisers to the Legislature, together with the original text of " The Law of Real Property," are contained in the appendices. As this volume is the result of prolonged labor on the part of the editor, it is perhaps natural for him to express the hope that it may, in some small measure, fill the place it was designed to occupy — that of a ready-reference book. If it do this, the writer will feel abundantly repaid for what cannot but prove to him an otherwise unprofitable, though not wholly unpleasant, task. New York, January, 1899. TABLE OF CONTENTS. PAGE. Preface ;;; Preface to First Edition v Table of Contents vii Table of Cases xv Introduction 1-75 Constitutional provisions affecting real property and commentary 77-84 "THE REAL PROPERTY LAW." Article I. "Tenure of Real Property." With notes and comments on the text 85-130 Sec. I. Short title ; definitions ; effect 86 2. Capacity to hold real property 98 3. Capacity to transfer real property 106 4. Deposition of resident alien no 5. When and how alien may acquire and transfer real property., in 6. Effect of marriage with alien 120 7. Title through alien 123 8. Liabilities of alien holders of real property 128 9. Heirs of patriotic Indian 129 Article II. " Creation and Division of Estates." With notes and comments on the text - 131-342 Sec. 20. Enumeration of estates 132 21. Estates in fee simple and fee simple absolute 155 22. Estates tail abolished ; remainders thereon 187 23. Freeholds ; chattels real ; chattel interests 190 24. When estate for life of third person is freehold; when chattel real I93 25. Estates in possession and expectancy 195 [vii] viii Table of Contents. Page. Sec. 26. Enumeration of estates in expectancy i97 27. Definition of future estates 200 28. Definition of remainder ^i 29. Definition of reversion 207 30. When future estates are vested ; when contingent 209 31. Power of appointment not to prevent vesting 234 32. Suspension of power of alienation 236 33. Limitation of successive estates for life 268 34. Remainders on estates for life of third person 273 35. When remainder to take effect if estate be for lives of more than two persons 277 36. Contingent remainder on term of years 279 37. Estate for life as remainder on term of years 282 38. Meaning of heirs and issue in certain remainders 283 39. Limitations of chattels real 286 40. Creation of future and contingent estates 288 41. Future estates in the alternative 291 42. Future estates valid though contingency improbable 292 43. Conditional limitations 294 44. When heirs of life tenants take as purchasers 298 45. When remainder not limited on contingency defeating prece- dent estate takes effect 302 46. Posthumous children 304 47. When expectant estates are defeated 306 48. Effect on valid remainders of determination of precedent estate before contingency 310 49. Qualities of expectant estates 311 so. Disposition of rents and profits 315 51. Accumulations 318 52. Anticipation of directed accumulation 324 53. Undisposed of profits 325 54. When expectant estates are deemed created 328 55. Estates in severalty, joint tenancy and in common 329 56. When estate in common; when in joint tenancy 331 57. Sale of real property held by tenant for life with contingent remainder or remainders over to persons whose identity is unknown _ 58. Application, how made .,„ 59. Sale, how conducted , .- 60. Conveyance upon sale 61. Disposition of proceeds of sale " " - .„ o4-* Table of Contents. ix Article III. "Uses and Trusts." PAGE. With notes and comments on the text 343-456 Sec. 70. Executed uses existing 344 71. Certain uses and trusts abolished 346 72. When right to possession creates legal ownership 350 73. Trustees of passive trust not to take 356 74. Grant to one where consideration paid by another 359 75. Bona fide purchasers protected 364 76. Purposes for which express trusts may be created 365 T7. Certain devises to be deemed powers 388 78. Surplus income of trust property liable to creditors 399 79. When an authorized trust is valid as a power 402 80. Trustee of express trust to have whole estate 407 81. Qualification of last section 411 82. Interest remaining in grantor of express trust 412 83. What trust interest may be aliened 413 84. Transferee of trust property protected 420 85. When trustee may convey trust property 422 86. When trustee may lease trust property 428 87. Notice to beneficiary where trust property is conveyed, mort- gaged or leased 432 88. Person paying money to trustee protected 434 89. When estate of trustee ceases 436 90. Termination of trusts for the benefit of creditors 438 91. Trust estate not to descend 440 92. Resignation or removal of trustee and appointment of suc- cessor 443 93. Grants and devises of real property for charitable purposes... 448 94. Trustee's investments in stocks and bonds 455 Article IV. " Powers." With notes and comments on the text 4S7""557 Sec. no. Effect of article 458 111. Definition of a power 467 112. Definitions of grantor, grantee 470 113. Division of powers 47' 114. General power 472 115. Special power 473 116. Beneficial power 474 X Table of Contents. PAGE. Sec. 117. General power in trust 477 118. Special power in trust 481 119. Capacity to grant a power 482 120. How power may be granted 483 121. Capacity to take and execute a power 486 122. Capacity of married woman to take power 488 123. Capacity to take a special and beneficial power 491 124. Reservation of a power 494 125. Effect of power to revoke 497 126. Power to sell in a mortgage 499 127. When power is a lien 500 128. When power is irrevocable Soi 129. When estate for life or years is changed into a fee 503 130. Certain powers create a fee 508 131. When grantee of power has absolute fee Sio 132. Effect of power to devise in certain cases 512 133. When power of disposition absolute 513 134. Power subject to condition 514 135. Power of life tenant to make leases 515 136. Effect of mortgage by grantee 517 137. When a trust power is imperative 518 138. Distribution when more than one beneficiary 523 139. Beneficial power subject to creditors 525 140. Execution of power on death of trustee 526 141. When power devolves on court 527 142. When creditors may compel execution of trust power 528 143. Defective execution of trust power 529 144. Effect of insolvent assignment 530 145. How power must be executed 531 146. Execution by survivors 533 147. Execution of power to dispose by devise 535 148. Execution of power to dispose by grant 536 149. When direction by grantor does not render power void 537 150. When directions by grantor need not be followed 538 151. Nominal conditions may be disregarded 539 152. Intent of grantor to be observed 540 153. Consent of grantor or third person to execution of power. . . . 542 154. When all must consent 543 155. Omission to recite power 544 156. When devise operates as an' execution of the power 546 157. Disposition not void because too extensive 548 158. Computation of term of suspension 550 159. Capacity to take under a power 552 160. Purchaser under defective execution 554 161. Instrument affected by fraud 555 162. Sections applicable to trust powers 556 Table of Contents. xi Article V. " Dower." PAGE. With notes and comments on the text 558-604 Sec. 170. Dower , 558 171. Dower in lands exchanged 568 172. Dower in land mortgaged before marriage 569 173. Dower in lands mortgaged for purchase money 370 174. Surplus proceeds of sale under purchase money mortgages. . 572 175. Widow of mortgagee not endowed 574 176. When dower barred by misconduct 575 177. When dower barred by jointure 579 178. When dower barred by pecuniary provisions 582 179. When widow to elect between jointure and dower 584 180. Election between devise and dower 587 181. When deemed to have elected 590 182. When provision in lieu of dower is forfeited 593 183. Effect of acts of husband 594 184. Widow's quarantine 599 185. Widow may bequeath crop 601 186. Divorced woman may release dower 602 187. Married woman may release dower by attorney 604 Article VI. "Landlord and Tenant." With notes and comments on the text 605-642 Sec. 190. Action for use and occupation 605 191. Rent due on life leases recoverable 611 192. When rent is apportionable 613 193. Rights where property or lease is transferred 615 194. Attornment by tenant 620 195. Notice of action adverse to possession of tenant 623 196. Effect of renewal on sub-lease 624 197. When tenant may surrender premises 626 198. Termination of tenancies at will or by sufferance, by notice. . 631 199. Liability of tenant holding over after giving notice of inten- tion to quit 63s 200. Liability of tenant holding over after giving notice to quit. .. 637 201. Liability of landlord where premises are occupied for unlaw- ful purpose 640 202. Duration of certain agreements in New York 641 xii Table of Contents. Article VII. " Conveyances and Mortgages." With notes and comments on the text 643-747 Sec. 205. Definitions and use of terms ^43 206. Livery of seizin abolished 648 207. When written conveyance necessary 651 208. Grant of fee or freehold 660 209. When grant takes effect 665 210. Estate which passes by grant or devise 667 211. Certain deeds declared grants 670 212. Conveyance by tenant for life or years of greater estate than possessed 673 213. Effect of conveyance where property is leased 674 214. Covenants in mortgages 675 215. Mortgages on real property inherited or devised 677 216. Covenants not implied 679 217. Lineal and collateral warranties abolished 681 2i8. Construction of covenants in grants of freehold interests.... 682 219. Construction of covenants in mortgages and bonds 684 220. Construction of grant of appurtenances and of all the rights and estate of grantor 688 221. Construction of grant in executor's or trustee's deed of appur- tenances, and of the estate of testator and grantor 68g 222. Covenants to bind representatives of grantor and mortgagor and enure to the benefit of whom 690 223. Short forms of deeds and mortgages 691 224. When contract to lease or sell void 711 225. Effect of grant or mortgage of real property adversely pos- sessed 715 226. Conveyances with intent to defraud purchasers and incum- brancers void 720 227. Conveyances with intent to defraud creditors void 723 228. Conveyances void as to creditors, purchasers and incum- brancers, void as to heirs and assigns 727 229. Fraudulent intent, question of fact 728 230. Rights of purchaser or incumbrancer for valuable considera- tion protected 730 231. Conveyances with power to revoke, determine or alter 732 232. Disaffirmance of fraudulent act by executor and. others 735 233. When remainderman may pay interest owed by life tenant. .. . 737 234. Powers of courts of equity not abridged 738 235. Construction of covenants in mortgages on leases of real property and bonds 739 236. Construction of grants of appurtenances, et cetera, and all of the rights and estate of the mortgagor 743 237. What form of mortgage on lease of real property 745 Table of Contents. xiii Article VIII. "Recording Instruments Affecting Beal Property." PAGE. With notes and comments on the text 748-834 Sec. 240. Definitions ; effect of article 749 241. Recording of conveyances 754 242. By whom conveyance must be acknowledged or proved 764 243. Recording of conveyances heretofore acknowledged or proved. 766 244. Recording executory contracts and powers of attorney 767 245. Recording of letters patent 768 246. Recording copies of instruments which are in secretary of state's office 770 247. Certified copies may be recorded 772 248. Acknowledgments and proofs within the state 773 249. Acknowledgments and proofs in other states 775 2490. Acknowledgments of conveyance in certain places; certifi- cate of acknowledgment Tjf^ 250. Acknowledgments and proofs in foreign countries 779 251. Acknowledgments and proofs by married women 782 252. Requisites of acknowledgments 785 253. Proof by subscribing witness 786 254. Compelling witnesses to testify 78S 255. Certificate of acknowledgment or proof 790 256. When certificate to state time and place 799 257. When certificate must be under seal 800 258. Acknowledgment by corporation and form of certificate 802 259. When county clerk's authentication necessary 804 260. When other authentication necessary 807 261. Contents of certificate of authentication 808 262. Recording of conveyances acknowledged or proved without the state, when parties and certifying officer are dead 810 263. Proof where witnesses are dead 812 264. Recording books 814 265. Indexes 815 266. Order of recording 817 267. Certificate to be recorded 818 268. Time of recording 819 269. Certain deeds deemed mortgages 820 270. Recording discharge of mortgage 822 2700. Recording discharge of mortgages in cities of first class 825 271. Effect of recording assignment of mortgage 828 272. Recording of conveyances made by treasurer of Connecticut.. 829 273. Revocation to be recorded 830 274. Penalty for using long forms of covenants 831 275. Certain acts not affected 832 276. Actions to have certain instruments canceled of record 833 277. Officers guilty of malfeasance liable for damages 834 xiv Table of Contents. Article IX. "The Descent of Real Property." PAGE. With notes and comments on the text 835-894 Sec. 280. Definitions and use of terms ; effect of article 835 281. General rule of descent 844 282. Lineal descendants of equal degree 854 283. Lineal descendants of unequal degree 856 284. When father inherits 858 285. When mother inherits 861 286. When collateral relatives inherit; collateral relatives of equal degrees 863 287. Brothers and sisters and their descendants 866 288. Brothers and sisters of father and mother and their descend- ants and grandparents 868 289. Illegitimate children 872 290. Relatives of the half-blood 876 2900. Inheritance from husband or wife 879 291. Cases not hereinbefore provided for 881 292. Posthumous children and relatives 883 293. Inheritance, sole or in common 885 294. Alienism of ancestor 886 295. Advancements 883 296. How advancements adj usted 893 Article X. " L, ws Eepealed." With schedule of same 895-897 Schedule of amendments to The Real Property Law 898 APPENDIX No. I. Containing report, original notes of the Commissioners of Statutory Revision and text of the original statute, The Real Property Law, together with a table showing the disposition of the laws repealed. 899-984 APPENDIX No. II. Notes of the original Revisers of the Revised Statutes on the text of the several articles and sections, now contained in The Real Property Law, with cross-references to the latter law in the foot notes 985-1041 GENERAL INDEX 1043- TABLE OF CASES. Abbiss V. Burney, 25, 31, 408 Abbott V. Allen, 698 Abbott, Matter of, 444 Abeel v. Radcliff, 177, 608 Abegg V. Bishop, 729 Abraham v. Meyer, 762, 821 Acer V. Westcott, 760, 761 Ackerman v. Ackerman, 217 Ackerman v. Emott, 427 Ackerman v. Gorton, 505 Ackerman v. Hunsicker, 754, 759 Ackerman, Matter of, 381 Ackland v. Lutley, 428 Achlers v. Rehlinger, 628 Ackley v. Westervelt, 633 Ackroyd v. Smithson, 842 Adair v. Brimmer, 427 Adair v. Lott, 562, 837 Adams v. Anderson, 859, 871 Adams v. Backer, 226, 305, 339 Adams v. City of Cohoes, 632, 633, 634, 638, 712 Adams v. Greenwich Ins. Co., 153 Adams v. Perry, 353, 404, 451, 452, SS7 Adams v. Smith, 855 Adee v. Bigler, 726 Adee v. Hallett, 725, 729, 760 Adsit V. Adsit, 588 Adsit V. Butler, 726 Agan V. Barry, 653 Ah Yup, In re, 100 Ahem v. Ahem, 381 Ahrens v. Jones, 358, 362, 363, 657 Aikman v. Harsell, 564 Aken v. Kellogg, 591, 592 Albany City Bank v. Schermerhorn, 447 Albany Exchange Savings Bank v. Brass, 418, 544 Albany Fire Ins. Co. v. Bay, 392, 595, 782 Albany Savings Bank v. McCarty, 793 Alexander v. Alexander, 541 Alexander v. Bennett, 555, 738 Aleyn v. Belcher, 541, 555 Allaway v. Wagstafif, 152 [XV] Aldridge v. Aldridge, 218 AUee v. Slane, 725, 729 Allen v. Culver, 703, 709 Allen V. De Witt, 519, 539, 540 Allen V. Allen, 248, 383, 385, 479, SS3 Allen V. Arkenburgh, 333, 363 Allen V. Culver, 618, 627 Allen V. Jaquish, 625 Allen, Matter of, 216, -'23, 390. 444, 8S3 Allen V. Reynolds, S97, 784 -Allen V. Stevens, 348, 349, 449, 451, 452, 454 Allen V. Stevens, 293 Alsheimer v. Krohn, 630 Almstaedt v. Benedict, 381 Althause, Matter of, 137, 191, 192 Alvord v. Fletcher, 706 American Bank Note Co. v. N. Y El. R. R. Co., 717 American Forcite Co. v. Hanna, 725 Amer. Home Miss. v. Wadhams, 535 Ames V. Blunt, 722 Amherst College v. Rich, 658 Ammerman v. Dean, 706 Amory v. Lord, 233, 252, 266, 274, 275, 290, 3^3, 411 Amsterdam Knitting Co. v. Dean, 94 Andrews v. Andrews, 578 Andrews v. Appel, 699 Andrews v. Mahoney, 713 Andrews v. Shaffer, 107, 596, 597, 784 Andrews v. Whitney, 400 Andrews v. Wolcott, 700 Anderson v. Anderson, 387 Anderson v. Blood, 730, 760 Anderson v Jackson, 12, 13, 283 Anderson v. Mather, 355, 439, 441 Anstice v. Brown, 117 Antisdel v. Williamson, 661 Applebaum v. Galewsky, 659, 712. 714 Archbold v. N. Y. C. & H. R. R.' Co., 171 Archer v. Eckerson, 91, 650, 665, 671 Archibald v. N. Y. C. & H. R R. Co., 92, 716, 717, 718 Arents v. L. I. R. R. Co., 716, 717 Armitage v. Coates, 42, 241 XVI Table of Cases. Armory Board, Matter of the, 271, 274, 376, 410, 431, 493 Armstrong v. Combs, 764, 774, 785, 793, 818 Armstrong v. Moran, 843 Armstrong v. Union College, 564, 566 Arnold v. Gilbert, 379, 404, 518 Arnold v. Haroun, 890 Arnold v. Hudson River R. R Co., 654 Arnot V. Arnot, 285 Arnot V. Hill, 658 Arnoux v. Phyfe, 405 Arthur v. Dalton, 416 Asch V. Asch, 588 Asch, Matter of, 305, 342, 426, 427 Associate Alumni v. General Theo- logical Seminary, 165, 168, 170, 362, 370 Atherton v. Atherton, 578 Atty.-Gen. v. Coventry, 184 Atty.-Gen. v. Sands, 116, 117, 316 Atty.-Gen. ex rel., etc., v. Reformed Dutch Church, 441 Atty.-Gen. of Ontario v. Mercer, 83 Austen v. Taylor, 352 Austin V. Ahearne, 620, 622 Austin V. Oakes, 405, 464, 502, 519, S21, 522, 524, 529, 549 Austin V. Sawyer, 601, 841 Averill v. Taylor, 137, 191, 656 Avery v. Everett, 839 Avery v. N. Y. C. & H. R. R. Co., 172, 618 Ayres v. Methodist Church, 347, 348, 4S0 Babcock, Matter of, 309, 506 Babcock v. Eckler, 728, 729 Babcock v. Jones, 725 Babcock v. Read, 714 Babcock v. The Montgomery Mut. Ins. Co., 626 Babcock v. Utter, 653 Bacon v. Van Schoonhoven, 752, 757, 758, 824 Baer, Matter of, 217, 218, 305 Bailey v. Bailey, 270 Bailey v. Bailey, 233, 248, 258, 376, 379, 382, 383, 385 Bailey v. Delaplaine, 625 Bailey v. Weed, 654, 714 Bailie v. Plant, 636 Bain v. Clark, 141 Baitd V. Baird, 661, 663 Baird v. Campbell, 91, 92 Baird, Matter of, 490, 837 Baker v. Bliss, 364, 760 Baker v. Lorillard, 188 Baker v. Thomas, 759 Baker v. Woman's Christian Temp. Union, 168, 169, 170 Ballou V. Ballou, 841 Ballou V. Baxter, 625 Baltes, Matter of, 445 Bancroft v. Wardwell, 608 Bank for Savings v. Frank, 752, 761, 814, 821 Bank of Beloit v. Beale, 725 Bank of Ogdensburg v. Arnold, 565 Bank of Orleans v. Flagg, 760 Bank of the United States v. Hous- man, 355, 662 Banks v. Walker, 115, 886 Banker v. Braker, 146, 264 Banker v. Janes, 233 Banta v. Banta, 657, 659 Banta v. Merchant, 87 Banzer v. Banzer, 185, 334 Barber v. Barber, 485 Barber v. Brundage, 208, 312, 840, 860, 862 Barber v. Carey, 464, 474, S31, 532, 540, 542, 554 Barbour v. De Forest, 320, 322 Barker v. Cary, 301 Barker v. Crosby, 390 Barkley v. Forbes, 713 Barkley v. McCue, 625 Barkley v. Wilcox, 96 Barlow v. Barlow, 188, 284, 300 Barnard v. Gantz, 498 Barney v. Everard, 707 Barney v. Pike, 336 Barnsdall v. Boley, 837 Barnum v. Barnum, 874 Barrett v. Failing, 577, 578 Barringer, Matter of, 873 Barton v. Hosmer, 735 Bartow v. Draper, 55, 64 Bascom v. Albertson, 242, 347, 348, 404, 45 1 Bassett v. Dean, 628 Bates V. Printup, 130 Bates V. Schraeder, 850 Bates V. Virolet, 874 Batelle, Matter of, 217, 311 Bath Gas Light Co. v. Clafify, 609 Battesraan v. Albright, 88 Baudoine, In re Baxter v. West, 608 Beach v. Gray, 610 Beach v. Mayor, 88 Beach v. Nixon, 161 Beals V. Providence Rubber Co., 147 Bean v. Hockman, 321, 375 Beardslee v. Beardslee, 563 Table of Cases. xvu Beardsley v. Hotchkiss, 198, 203, 204, 245. 247> 248, 249, 259, 260, 261, 313, 550, 553 Beardsley Scythe Co. v. Foster, 726 Beasel v. Gray, 718 Bebee v. Estabrook, 889, 890, 891, 893 Bebee v. Griffing, 870, 877, 878 Beck, Matter of, 118 Beck V. Allison, 626 Beck V. McGillis, 102, 121 Becker v. Becker, 243, 321, 372, 375, 382 Becker v. Krank, 713 Becknell v. Lancaster Ins. Co., 722, 724 Beddoe's Exr. v. Wadsworth, 698, 700 Bedell v. Shaw, 134, 718, 850 Bedford v. Terhune, 609, 625, 656 Bedford v. Tupper, 762, 814 Bedlow V. N. Y. Floating Dock Co., 93, 623 Bedlow V. Stillwell, 563, 565 Beekraan v. Bonsor, 242 Beekman v. Bonsor, 103, 117, 350, 381, 404, 451 Beekman v. Hudson, 562 Beekman v. Saratoga & Schenectady R. R. Co., 46, 70, 80, 81 Beeman v. Beeman, 378 Beeston v. Yale, 639 Belden v. Meeker, 751, 752, 757 Bell V. Bell, 578 Bell V. Champlain, 894 Bell V. Mavor, etc., of New York, 564, 570 Bell V. Warn, 308, 506, 507 Bellinger v. Shafer, 437 Belmont v. O'Brien, 248, 264, 368, 379, 403, 40s, 42s, 435, 460, 464, 468, 477, 478, 494. 497. 498, 5 14, 518, 519. 552, 751 Beman v. Douglas, 767 Bender v. Terwilliger, 837 Benedict v. Arnoux, 392, 405, 435, 540 Benedict v. Eldredge, 728 Benedict v. Webb, 243, 381, 382, 393, 521 Bengough v. Eldridge, 239 Benjamin v. Benjamin, 608 Bennett v. Abrams, 714 Bennett v. Crain, 192, 286 Bennett v. Culver, 165, 168, 645, 647 Bennett v. Garlock, 274, 307 Bennett v. Garlock, 344, 345, 354, 373 Bennett v. Mathews, 128 Bennett v. Rosenthal, 137, 144, 191, 286, 403. 656, 658, 838 Bensiger v. Erhardt, 263 '< j Benson, Matterof, 583, 589, 592 Benson v. Corbin, 185 Bentley v. Gardner, 761 Berenbroick v. St. Luke's Hospital, 617, 707 Bergen v. Bennett, 390, 499 Bergen v. Snedeker, 726 Berger v. Duff, 533 Bernheimer v. Adams, 153 Bernheimer v. Schmid, 654 Bernstein v. Lightstone, 641 Berrien v. McLean, 441 •Berry, Matter of, 678 Bertles v. Nunan, 334, 837 Betts V. Betts, 140, 154, 535 Betts V. Betts, 386 Bevan v. Cooper, 398 Bidwell V. Sullivan, 785, 791, 792 Bierbaum, Matter of, 519 Bigelow V. Tilden, 171, 257, 264, 381 Biglow V. Biglow, 666, 717 Biglow V Biglow, 608 Billings V. Baker, 837 Billings V. Billings, 729 Billings V. Russell, 725, 729 Bimpson v. The German-Amer. Imp. Co., 690 Bimson v. Bultman, 705 Bindrim v. Ullrich, 227, 232, 381, 408 Bingham, Matter of, 397 Bingham v. Weiderwax, 698 Bird V. Pickford, 243, 266, 382, 383, 385 Birdsall v. Gary, 168 Birdsall v. Grant, 12, 165, 168, 370 Birdsall v. Schwartz, 725 Bishop v. Bishop, 285 Bissing v. Smith, 717, 805 Blackman v. Striker, 706 Blain v. Taylor, 703 Blanchard v. Blanchard, 479, 553 Blauvelt v. Gallagher, 308, 506 Blewitt V. Boorum, 658, 665, 666 Blinn v. Schwartz, 108 Blood V. Humphrey, 597, 784 Bloodgood V. Ayres, 95, 96 Blundell v. Catterall, 9 Blydenburgh v. Northrop, 569, 571, 572 Board of Education v. Rielly, 169 Boasberg v. Cronan, 482 Bockes V. Lansing, 726 Bodine v. Edwards, 360 Bogardus, Matter of, 273 Bogardus v. Trinity Church, 23, 51. 58, 59, 60, 61, 63, 80, 156, 599 Bogert V. Hertell, 390, 527 Bogert V. Hess, 728 Boies V. Benham, 570, 755 Boies V. Gardner, 755 xvni Table of Cases. Bollerman v. Blake, ii8, 844, 872, 873 Bolton V. De Peyster, 546 Bool V. Mix, 581, S9S, 782 Boon V. Hall, 426 Booth V. Baptist Church, 198, 200, 230, 23s, 242, 247, 249, 250, 256, 257, 264, 265, 293, 347, 368, 374, 380, 381, 384, 478, 479. 503, S19, SS2, 553 Booth V. Fuller, 108 Booth V. Kehoe, 192, 286, 752 Booth V. Stuyvesant, 519 Boreel v. Lawton, 629 Borst V. Empie, 813 Boskowitz V. Held, 226, 262 Bostwick, Matter of, 235, 460, 494, 497 Bostwick, Matter of, 324 Bostwick V. Beach, 529, 531, 561, 598 Botsford, Matter of, 390 Boulton V. Canon, 708 Bouton V. Welch, 653, 657 Bowditch V. Ayrault, 224 Bowers v. Smith, 412 Bowman v. Domestic & F. Mission Society, 453 Boyce, Matter of, 218 Boyce v. Adams, 534 Boyd V. Belmont, 699 Boyd V. Milone, 634 Boyd V. Schlesinger, 752, 753, 767 Boyd V. Thayer, 99, 100, 102 Boyle V. Tamlin, 703 Boynton v. Hoyt, 320, 381 Brackett v. Baum, 563, 569, 571, S72, 573 Bradhurst v. Field, 592 Bradley v. De Goicouria, 629 Bradley v. Walker, 705, 752, 754, 759, 783 Bradly v. Westcott, 504 Bradstreet v. Clarke, 388, 391, 645, 717 Bradt v. Church, 144, 150, 174, 177, 181, 619 Brady v. Begun, 57, 59, 73, 718 Brady v. McCosker, 387 Bramhall v. Ferris, 109, 140, 162, 163, 169, 400 Branagh v. Smith, 115 Brandow v. Brandow, 406, 452 Brandreth, Matter of, 496 Brandt v. Brandt, 371 Brann v. Ochs, 657 Brann v. Vollmer, 742 Brant v. Gelston, 300 Brantingham v. Huff, 657, 852, 853 B rater v. Hopper, 441, 442, 446 Brauer v. Oceanic Steam Navigation Co., 659 Breed v. National Bank, 761, 762 Brendt v. Brendt, 154, 386 Brennen v. Kelly, 701 Bretson v. Stoops, 587 Brewer v. Brewer, 383, 479 Brewster v. Brewster, 97, 109, 417 Brewster v. Carnes, 828 Brewster v. Power, 364 Brewster v. Striker, 192 Bridger v. Pierson, 645, 647 Briggs V. Carrol, 398 Briggs V. Davis, 354, 373, 408, 411, 412, 420, 42s, 426, 754, 755 Briggs V. Davis, 274 Briggs V. Partridge, 714 Briggs V. Prosser,' 717 Briggs V. Thompson, 752, 757 Brigham v. Peter Bent Brigham Hos- pital, 323, 453 Bright V. Boyd, 146 Brill V. Wright, 398 Bristor v. Burr, 152, 632 Broad Smith v. Draeger, 531 Broiestedt v. South Side R. R. Co.- of L. L, 717 Broman v. Young, 192, 752 Bromley v. Miles, 725 Bronner v. Walter, 141, 027 Bronson v. Bronson, 445 Brookfield, Matter of, 93, 154, 263 Brooklyn Trust Co., Matter of, 496 Brooks V. Galster, 87 Brower v. Williams, 710 Brown v. Barker, 401 Brown v. Brown, 370, 382 Brown v. Brown, 566 Brown v. Brown, 334 Brown v. Brown, 108, 243 Brown v. Burlingham, 846, 867, 871, 877, 878, 882 Brown v. Cherry, 362 Brown v. Coddington, 502 Brown v. Crabb, 653, 713 Brown v. Dean, 622, 820 Brown v. Dewey, 675, 821 Brown v. Doherl^',. 533 Brown v. Higgs, 468 Brown v. Kimball, 813 Brown v. Lyon, 298, 300, 301 Brown v. McKee, 700 Brown v. Ontario Talc Co., 95 Brown v. Parker, 774 Brown v. Perry, 185, 506 Brown v. Pocodc, 415 Brown v. Quintard, 219, 265, 266, 382, 384, 38s, 646 Brown v. Richter, 274 Brown v. Spohr, 371 Brown v. Volkening, 760, 761 Brown v. Wadsworth, 298, 299, 300 Brown y, Woodworth, 654 Table of Cases. Brown, Matter of, 218, 230, 235 Browne v. Murdock, 222 Browning v. Garvin, 628 Browning v. Hart, 724 Browning v. Stillwell, 701 Bruce v. Griscom, 890 Brumm v. Gilbert, 713 Brundenell v. Elwes, 541 Bruner v. Meigs, 393, 406, 437, 520 Bryan v. Knickerbocker, 380, 399, 414 Bryant v. Allen, 362 Brydges v. Brydges, 408 Buchan v. Sumner, 335 Buchanan v. Little, 265, 266, 354, 374, 378, 384 Buchanan v. Whitman, 636, 639 Buck V. Binnenger, 618 Buckley v. Buckley, 153, 842, 844 Bucklin v. Bucklin, 442, 665, 672 Buckworth & Thirkell, Case of, 36 Buel V. Southwick, 188 Bulkley v. De Peyster, 264 Bull V. Follett, 69s Bull V. Odell, 416 Bullard v. Bicknell, 716 Bullenkamp v. Bullenkamp, 362, 653 Bundy v. Bundy, 285 Bunnell v. Gardner, 400 Bunner v. Storm, 534 Bunyan v. Pearson, 223 Burgess v. Wheate, 184, 345, 366 Burke, Matter of, 324 Burke v. Valentine, 490, 837 Burkhart v. Tucker, 151, 632 Burlingham v. Belden, 645 Burlock V. Peck, 704 Burnet v. Scribner, 606 Burnham v. Brennen, 725 Bnrnham v. Comfort, 890 Burns v. Bryant, 151, 632 Burr V. Stenton, 137, 191, 192, 679 Burrell v. Jackson, 679, 680 Burrell v. Root, 713 Burrill v. Boardman, 257, 293 Burrill v. Shell, 441, 447 Burt V. C. Gobzian & Co., 725 ' Burtis V. Burtis, 575, 576 Burton v. Burton, 99, 116 Burton v. Yale, 608 Bush V. Roberts, 728, 730 Bushman v. Hudson, 227 Bushnell v. Carpenter, 217 Butler V. Baudoine, 401 Butler V. Butler, 214, 281 Butler V. Butler, 370, 418 Butler V. Kidder, 627, 628 Butler V. Trustees, 452 Butler V. Viele, 760 Butterfield, Matter of Will of, 230, 23s Button V. Plemmens, 378, 441 Byrnes v. Baer, 391, 668 Byrnes v. Stilwell, 185, 216, 219, 223, 224, 271, 312 Cadell V. Palmer, 41, 237, 240, 244, 245 Cager, Matter of, 308, 506 Cagger v. Cagger, 712 Cagger v. Lansing, 166, 170, 173, 180, 181 Cahill V. Russell, 392, 468 Cahill Iron Works v. Pemberton, 650, 711 Cairns v. Chabert, 140 Calkins v. Long, 408 Callahan v. O'Brien, 103, 114, 115, 887 Calvert v. Gason, 146 Calvo V. Davies, 756 Cambridge Valley Bank v. Delano, 754, 761 Cameron v. Irvin, 716 Camille, In re, 100 Campbell v. Beaumont, 185, 271, 308, S06, 513 Campbell v. Campbell, 578 Campbell v. Crampton, 576 Campbell v. Ellwanger, 570 Campbell v. Foster, 416 Campbell v. Hall, 54, 55, 59 Campbell v. Jennings, 442, 469 Campbell v. Johnson, 388 Campbell v. Leach, 429, 554 Campbell v. Low, 377, 494, 496 Campbell v. Morgan, 646 Campbell v. Morris, 98 Campbell v. Rawdon, 253, 258, 293, 299, 301, 310 Campbell v. Stokes, 220, 224, 232, 233, 30s, 353 Campbell v. Vedder, 758 Campbell, Matter of, 396 Canada v. Totten, 363 Canal Appraisers v. People, 55, 62, 63, 80, 90 Canal Commrs. v. The People, 51, 55, 57, 64, 6s Canda v. Totten, 714, 738 Canandarqua Acad. v. McKechnie, 784, 790, 792, 793, 802 Candee v. Hay ward, 718 Canfield v. Canfield, 378 Canfield v. Fallon, 285 Canfield v. Fallon, 217, 218, 224, 861 Canfield v. Ford, 88 Carberry v. Ennis, 397 Carey v. Griffin, 362 Carey v. Kreizer, 627 XX Table of Cases. Carey v. White, 761 Carmichael v. Carmichael, 216 Carpenter v. Bonner, 556 Carpenter v. Carpenter, 583 Carpenter v. Dexter, 774, 790 Carpenter v. Schermerhorn, 223, 227, Carr v. Anderson, 837 Carr v. Breese, 722, 725 Carr v. Carr, 362 Carr v. Ellison, 146 Carr v. Smith, 217 Carroll v. Collins, 852 Carter v. Burr, 177, 680 Carter v. Youngs, 737 Carvalleo v. Brooklyn & I. B. Turn- pike Co., 93 Case V. Phelps, 725 Cass V. Cass, 204, 370, 372, 386, 512 Castaquette v. Nicchia, 627 Cathcart v. Robinson, 722 Center v. Everard, 153 Center v. Morrison, 784 Central Bank v. Heydorn, 174, I7S, 177, 180, 184, 619 Central Fire Works Co. v. Charlton, «i Central Nat. Bank v. Seligman, 725, 729 Central Trust Co., Matter of, 384 Cesar v. Karutz, 627 Chadwick v. Woodward, 628, 629 Chamberlain v. Chamberlain, 562, 591 Chamberlain v. Dunlop, 625, 627 Chamberlain v. Taylor, 389, 403, 842 Chamberlain v. Taylor, 765 Chamberlain v. Spargur, 661 Chamberlain v. Stearns, 450 Chamberlain, Matter of, 87, 88, 841 Champlain, etc., Co. v. Valentine, 90 Champlin v. Baldwin, 859 Champlin v. Haight, 435 Champlin v. Parish, 713 Chanler v. N. Y. El. R. R. Co., 389, 480 Chapin v. Shafer, 108 Chapman v. Moulton, 156, 216, 217, 290 Charman v. Tatum, 701 Chase v. Ewing, 890, 892 Chase v. Peck, 571 Chase, Matter of, 367, 370, 389 Chauncey v. Arnold, 665 Chautauque Co. Bank v. Risley, 447 Cheesebrough v. Lieber, 630 Chenango Bridge Co. v. Paige, 89 Chester v. Dickinson, 361, 657 Child V. Starr, 89 Chinn v. Keith, 220 Chipman v. Montgomery, 343, 387 Chirac v. Chirac, 98 Christie v. Gage, 167, 673, 716, 717, 718 Chrystie v. Mackaness, 300 Chrystie v. Phyfe, 300 Church V. Bull, 588 Church V. Schoonmaker, 717 Church V. Shultes, 144, 145, 174, 177, 182, 717 Church V. Wright, 145, 150, 177, 182, 717 Chwatal v. Schreiner, 241, 285 Church in Brattle Square v. Grant, 313 Church of St. Stanislaus v. Algemeine Verein, 362 Citizens' Savings Bank v. Mooney, 571 City of Brooklyn v. Copeland, 168 City of Brooklyn v. Mackay, 91 City of Brooklyn v. Seaman, 248, 270, 386 City of La Crosse v. Cameron, 717 City of New York, Matter of, 90, 91, 92, 410, 429, 430, 431, 493 City of Rochester, Matter of, 396, 397, 398 Claflin Co. v. Arnheim, 729 Clapp V. Bromagham, 717 Clapp V. Byrne, 108, 487 Clark V. Barnes, 144 Clark V. Battorf, 601 Clark V. Camman, 217 Clark V. Clark, 264, 374 Clark V. Clark, 752 Clark V. Clark, 562 Clark V. Crego, 441, 528, 530, 556 Clark V. Davis, 717 Clark V. Devoe, 695, 700, 703, 70O Clark V. Durland, 716 Clark V. Henry, 820 Clark V. Holdridge, 82 Clark V. Mackin, 758, 761 Clark V. McNeal, 756 Clark V. Water Comrs., 79 Clark, Matter of, 159, 161 Clarke v. Hughes, 718 Clarke v. Leupp, 185 Clarke v. Priest, 699 Clarke v. Richardson, 641 Clarke, Matter of, 490, 837 Clay V. Wood, 370 Clemens v. Clemens, 347, 441 Clements v. Babcock, 842 Cleves v. Willoughby, 610, 712 Clifford v. Kempfe, 564 Clifford v. Morrell, 556 Clift V. Moses, 389, 395, 397 Closs V. Eldert, 588 Cloos V. Cloos, 334 Clute V. Bool, 384, 400, 416 Table of Cases. XXI Clute V. N. Y. C. & H. R. R. R. Co., 718 Clute V. Robison, 820 Coales V. Cheeves, 139 Coan V. Osgood, 696 Coates V. Cheever, 565 Coatsworth, Matter of, 709 Coatsworth, Matter of, 146 Coburn v. San Mateo Co., 89 Cochrane v. Schell, 203, 233, 265, 320, 321, 322, 323, 326, 374, 378, 384, 385, 416, 417 Coe V. De Witt, 188 Coe V. Hobby, 140, 142, 625 Coe V. Touch, 713 Coffin V. Tallman, 709 Cogan V. McCabe, 217, 224, 242, 383 Coit V. Planer, 608, 610, 641 Colby V. Doty, 217 Colby V. Osgood, 699, 700 Cole V. Gourlay, 308, 506 Cole V. Hughes, 695, 703, 704, 705 Cole V. Irvine, 885 Cole V. Sewell, 31, 209, 229, 238, 240 Coleman v. Beach, 308, 469, 472, 505, 506, S19. 532, 535, 536, 64s Coleman v. Bresnahan, 699 Coleman v. Burr, 724, 729 Coleman v. The Fitzgerald Bros. Brewing Co., 608 Coleman v. Manhattan Beach Imp. Co., 646, 716 Coleman v. Van Rensselaer, 675 Coles V. Coles, 569, 571, S74 Collier v. Miller, 755 Collins V. Collins, 333 Collins V. Torrey, 574 Collister v. Fossett, 370, 405 Collyer v. Collyer, 606, 608, 610 Colrick V. Swinburne, 95 Colson V. Baker, 669 Colton V. Colton, 370 Colton V. Ross, 387 Comitis V. Parkerson, 98, 99, loi, 102 Corars. of Canal Fund v. Kempshall, 63, 6s, 89, 95 Conde v. Lee, 152 Conelly v. O'Brien, 217, 224 Conger v. Duryee, 169 Conger v. Esler, 146 Conger, Matter of, 218, 246, 247, 250, 258, 259, 267, 269, 321, 332, 333, 371. 381, 386, 478 Conkey v. Hart, 624 Conkie v. Grisson, 217 Conklin v. Conklin, 300 Conkling v. Brown, 844, 861, 865, 877, 878 Conkling v. Davies, 497 Conkling v. Egerton, 534 Conkling v. N. Y. El. R. R. Co., 551 Conkling v. Weatherwax, 395 Conolly, Matter of, 216, 232 Conlon V. Mission of Immaculate Vir- gin, 653, 657, 713 Conner v. Watson, 524 Conner, Matter of, 524 Connolly v. Smith, 116 Connor v. Bernheimer, 628 Connor v. Elliott, 100 Conover v. Hoffman, 501 Conroe v. Birdsall, 108 Constant v. Amer. Bap. Assn., 761 Constant v. University of Rochester, 760, 761 Constantine v. Van Winkle, 55, 595 Constantine v. Van Winkle, 782, 783 Contant v. Servoss, 392 Conte V. Conte, 562 Contzen v. United States, 102 Converse v. Kellog, 320, 321 Conway v. Starkweather, 633, 636, 642 Coogan V. Ockerhausen, 392, 395, 397 Cook V. Barr, 657 Cook V. Eaton, 821 Cook V. Fountain, 361 Cook V. Lowry, 320, 323, 326, 327 Cook V. Straiton, 414, 418 Cooke V. Piatt, 373, 374, 378, 556 Cooley V. Lobdell, 653, 713 Coolidge, Matter of, 842 Coon V. Coon, 217, 262 Coon V. Smith, 154 Cooper V. Fields, 151 Cooper V. Heatherton, 242, 304, 322, 383 Cooper V. Whitney, 565, 576 Copeland v. Luttgen, 628 Corfield v. Coryell, 56 Corley v. McElmeel, 387 Cornell v. Lamb, 81, 135, 136, 148, 149 Cornell v. Maltby, 760 Corning v. McCullough, 68, 106 Corning v. Troy Iron & Nail Factory, 716 Correll v. Lauterbach, 543, 554 Corscadden v. Haswell, 343. 367 Corse v. Chapman, 223, 258, 270, 386, 392 Corse v. Corse, 430 Corwin v. Corwin, 328, 355, 360, 663, 760 Cosgriff v. Dewey, 333 Cosgriff V. Foss, 333 Coster V. Lorillard, 235, 240, 274, 275, 322, 332,' 377, 380, 410, 416, 464, 541, 647 Cotheal v. Cotheal, 884 XXll Table of Cases. Cottman v. Grace, 347, 404, 451, 452, 527, 557 Coudert v. Cohn, 151, 152, 608, 632, 633 Coulsen V. Whiting, 629 Countryman v. Deck, 171, 172, 295, 313, 314, 695, 703, 704 County Palatine of Wexford, Case of, 52 Covert V. City of Brooklyn, 95 Cowen V. Rinaldo, 321, 372, 375 Cox V. Cleft, 833 Cox V. McBurney, 841 Cox V. Samrais, 633 Cox V. Weisner, 216 Coxe V. State, 70, 91, 92, 93, 94 Craig V. Butler, 630 Craig V. Craig, 321, 327, 392, 444 Craig V. Hone, 274, 377, 379 Crain v. Cavana, 583, 584 Crain v. Springer Lith. Co., 633, 638 Grain v. Wright, 645 Cramer, Matter of, 217, 232, 285, 290 Crane v. Powell, 659, 712 Crane v. Turner, 757, 758 Crane, Matter of, 217, 218 Crary v. Goodman, 715, 717 Craske v. The Christian Union Pub. Co., 633, 641 Graver v. Jermain, 275, 411 Crawford v. Redding, 628 Cregier, Matter of, 563 Grippen v. Morse, 333 Grisson v. Stout, 153 Crittenden v. Fairchild, 389, 393, 485, 521 Grocheron v. Jacques, 527, 556 Crocker v. Manhattan Ins. Co., 171, 263 Cromwell v. Cromwell, 385 Cromwell v. Kirk, 140 Crooke v. County of Kings, 469, 472, 50s, 508, S18, 550 Crooke v. County of Kings, 248, 274, 275. 294, 313, 377, 379. 382, 383, 408, 409, 410, 411, 412, 416 Crooked Lake Nav. Go. v. Keuka Nav. Co., 138, 193 Crosque v. Quinn, 583 Cross V. Cross, 874 ' Gross V. U. S. Trust Co., 371, 446 Croswell v. Crane, 610 Grouch V. Trimby, etc., 633 Grough V. Nurge, 659 Grouse v. Frothingham, 657 Crozier v. Bray, 308, 506 Cruger v. Halliday, 444 Gruger v. Jones, 426 Cruger v. McLaury, 173, 175, 177, 180, 181, 617, 619, 840 Cruikshank v. Cruikshank, 235, 389 Gruikshank v. Home for the Friend- less, 170, 230, 242, 257, 264, 293, 32.-^, 347, 381, 390, 406, 451, 452, 853 Gulhane v. Fitzgibbon, 646 Cumberland v. Godrington, 677 Gunliffe v. Brancker, 240, 540 Cunningham v. Freeborn, 360, 373, 663, 672, 760 Cunningham v. Knight, 563, 569, 581. 586, 596 Cunningham v. Parker, 169, 172 Currin v. Finn, 116 Curtis v. Leavitt, 266 Curtis V. Moore, 757, 760, 821, 823 Curtis V. Waldron, 217 Gushney v. Henry, 300, 353, 355 Cussack V. Tweedy, 393, 406, 520, 521, 553 Cuthbert v. Chauvot, 380, 415, 417, 418, 42s Cutler, Matter of, 737 Gutting V. Gutting, 62, 235, 344, 345, 357, 367, 391, 444, 445, 460, 461, 464, 467, 473, 474, 475, 481, 48S, 492. 495, 504, 505, 508, 509, 512, 513, 525, 528, 539 Cutting, Matter of, 444, 445 Guyler v. Bradt, 344, 345, 357, 367 D. Dakin v. Williams, 169 Daly V. Beer, 103, 114 Daly V. Wise, 627, 679 Dammert v. Osborn, 348, 452 Dana v. Jones, 216, 235, 257, 262, 307, 661, 664, 70s, 755, 763 Dana v. Murray, 203, 230, 235, 247, 249, 251, 252, 256, 261, 262, 266, 269, 272, 332, 479, 480, 550, 553 Daniels, Matter of, 453 Daniel v. Whartenby, 300 Danziger v. Boyd, 716, 717 Danziger v. Falkenberg, 628 Darling v. Rogers, 266, 376, 385, 408, 464, 645 Darlington v. The Mayor, 75 Darrow v. Calkins, 336 Dash v. Van Kleeck, 97 Davenport, Matter of, 843, 844, 849, 864, 867, 870, 871 David Stevenson Brewing Co. v. Gul- bertson, 608 Davidson v. Rightmyer, 397 Davidson, Matter of, 325 Davidson v. Crook, 755 Davies v. Jones, 752, 757, 758, 828 Davis V. Banks, 627 Table of Cases. xxiu Davis V. Bingham, 66i, 662 Davis V. Davis, 851, 874 Davis V. Graves, 421 Davis V. Leopold, 725 Davis V. Niagara Falls Power Co., 96 Davis v. Pres., etc., D. & H. Canal Co., 609 Davis v. Townsend, 654 Davoue v. Fanning, 392 Dawley v. Brown, 717 Day v. Roth, 362 Day V. West, 577 Dean v. Dean, 391, 404 Dean v. M. E. R. Co., 240 De Barante v. Gott, 446 De Beerski v. Paige, 714 De Caumont v. Bogert, 890 Decker v. High Street M. E. Church, 522 Decker v. Leonard, 814 Decker v. Morton, 628 Dederer v. Voorhies, 833 Deegan v. Van Glahn, 512 Deegan v. Wade, 24s, 372, 382, 389. 474, 479, 480, S04, SOS, S12, SS3 Deever v. Hagerty, 716, 719 Deeves v. Constables, 706 De Garmo v. Phelps, 718 De Graw v. Clawson, 109, 140, 378, 380, 384, 408, 416 De Hierapolis v. Reilly, 653 De Kay, Matter of, 353. 3SS, 371 De Kay v. Irving, 265, 266, 403, 416 Delacherois v. Delacherois, 60, 176, 179 Delafield v. Barlow, 390, 392 Delafield y. Brady, 784 Delafield v. Parish, 108 Delafield v. Shipman, 217, 23S Delafield v. Shipman, 326, 383 De Lancey v. Ganong, 174, 182, 610, 65s De Lancey v. Hawkins, 718 De Lancey v. Piepgrass, S3. 68, 70, 88, 92, 94, 148, 166, 173, 177, 183. 718 De Lancey v. Stearns, 7s8, 761, 762 De Lancey v. Wellbrock, 90, 91. 92 Delaney v. McCormack, 23s, 368. 403, 464, 473, 477, 480, 519. 526, SSfi Delano, Matter of. 235 De la Vergne Refrigerating Machine Co. v. German Savings Institution, 609 De Lisle v. Herbs, 563, 570 Del! V. Wisner, S20 Demarest v. Ray, 531 Deraarest v. Willard, 617, 708, 709 Dempsey v. Tylee, SS3 Denham v. Cornell, 841 Denick v. Denick, S78 Denike v. Harris, 427 Dennis v. Tarpenny, 784 Denterman v. Gainsburg, 89 Denton v. Jackson, ss, 64, 70 Denton v. Manny, 565, s69. 571. 572, 595 Denton v. Ontario County Bank, 761 De Peyster v. Clendening, 97, 284, 322, 478, Si8 De Peyster v. Michael, 46, 67, 81, 83, 106, 109, 138, 140, 141, 169, 17s, 176 Dept. of Health v. Wendel, 141 Dept. of Parks, Matter of, 717 De Ruyter v. Trustees of St. Peter's Church, 62, 146 Despard v. Churchill, 87, 137, 191. 192, 752 Deuel V. Rust, 606 De Veaux College v. Highlands Land Co., 169 Devisees of Van Rensselaer v. Exrs. of Platner, 173 Devoe, Matter of, 285 Dewey v. Moyer, 72s Dewey v. Wilson, 729 Dey v. Dunham, 820 Dey V. Prentice, 703 Dexter v. Beard, 701 Dibble v. Rogers, 78s, 792 Dickerman v. Abrahams, 107 Diefendorf v. Diefendorf, 665 Dierig v. Callahan, 709 Dill V. Wisner, 387, 392, 406 Dillaye v. Commercial Bank, 754 Dillaye v. Greenough, 358, 362, 370, 404, 583, 657 Di Lorenzo v. Di Lorenzo, 576 Dimmock v. Lockwood, 698 Dimon v. Shewan, 93 Dingley v. Bon, 760, 818 Disbrow v. Disbrow, 444, 445 Dittmar v. Gould, 400, 401, 734 Doane v. Doane, 737 Doane v. Mercantile Trust Co., 274 Doane v. Mercantile Trust Co., 386 Docker v. Boice, 751, 752, 755, 757, 758 Dodge, Exr. 'v. Pond, .348 Dodge V. Manning, 571. 757 Dodge V. Stevens, 161, 163, 204, 211, 228, 247, 313, 850 Dodge V. Wellman, 363 Dodge, Matter of, 290 Dodge, Matter of, 107, 134. S6l, 850 Dodin V. Dodin, 8=;i, 852 Dodsworth v. Dane, 321, 375. 506 Doe V. Butcher, 429 XXIV Table of Cases. Doe ex dam. de Peyster v. How- land, 793 Doe ex dem. White v. Simpson, 407 Doe V. HoUoway, S38 Doe V. Howland, 334 Doe, Lessee of Poor, v. Considine, 436 Doe V. Provoost, 311 Doe V. Willan, 428 Dolph V. White, 616, 617, 695, 696, 708. 709, 841 Dominick v. Michael, 87, 534 Dominick v. Sayre, 464, 465, 481, 519, 526 Donavan v. Van de Mark, 358, 370, zn, 404, 409 Donohue v. Joyce, 724 Donovan v. Twist, 676, 680, 694, 734, 742 Doody V. Holwedell, 544, 7SS Doremus v. Doremtis, 585 Dorland v. Dorland, 392, 468, 527 Dorrance v. Bonesteel, 625 Dorschel v. Burkley, 608 Dosoris Pond Co. v. Campbell, 88 Doty V. Hendrix, 591 Dougherty v. Thompson, 216, 223, 224, 226, 232, 247, 311 Douglass V. Cruger, 380, 417, 426 Douglass V. Hazen, 308, 506 Doupe V. Genin, 626 Dow V. Dow, 445 Dower v. Dower, 596 Downes v. Bidwell, 102 Downing v. Jones, 209, 264 Downing v. Kelly, 724 Downing v. Marshall, 103, 232, 233, 344. 346, 347. 349, 3So. 352, 353, 357, 368, 369, 371, 382, 403, 40s, 446, 450, 452, 454, 468, 477. 478, S18, 519, 557 Drake v. Drake, 285, 524 Dred Scott v. Hanford, 98 Dresser v. Travis, 321, 375 Drew V. Duncan, 767 Drischler v. Vander Henden, 884 Driver v. Frank, 232 Droge V. Cree, 816, 817 Drury v. Drury, 581, 583, 585, 586 Dubois v. Kelly, 152 Du Bois v. Ray, 219, 224, 230, 251, 260, 385 Ducan, In re, 410 Ducat V. Chicago, 100 Duchess of Chandos v. Brownlow, 762 Ducker v. Del Genovese, 627 Dudley v. Danforth, 728, 729 Duer V. Fox, 704 Duesler v. City of Johnstown, 94 Duggan V. Slocum, 244 Duke of Ancaster v. Mayer, 677 Duke of Cumberland v. Graves, 113, 117, 362, 805 Duncan, In re, 431 Duncan v. JBlair, 712 Duncklee v. Butler, 588, 589 Dung V. Parker, 712 Dunham v. Deraismes, 265, 374, 384, 397 Dunham v. Dey, 751, 700 Dunham v. Osborn, 562, 563 Dunham v. Williams, 50, 56, 58, 64, 70, 80, 90 Dunklee v. Butler, 385, 427 Dunlap V. Hawkins, 361, 724, 726, 728 Dunlop V. Avery, 754 Dunlop V. James, 744, 747 Dunlop V. Mulry, 744 Dunn, Matter of, 597 Dunning v. The Ocean Nat. Bank, 841 Dunscomb v. Dunscomb, 837 Dupre V. Thompson, 385 Duquesne Club v. Penn. Bank of Pittsburgh, 100 Durand v. Curtis, 708, 712 Durando v. Durando, 227, 289, 562, 563, 850 Durfee v. Pomeroy, 242, 251, 253, 382, 383, 385 Duryea v. The Mayor, 706 Dusenberry v. Dawson, 113, 114 Dusenbury v. Callaghan, 698 Dusenbury v. Hurlburt, 755 Dutch church in Garden Street v. Mott, 144, 14s, 379 Duval V. Eng. Luth. Church, 274, 408 Dyeing & Printing Estab. v. De Wes- tenberg, 409, 428 Dyer v. Dyer, 362, 891 Dyett V. Cent. Trust Co., 414, 415, 418 Dygert v. Remerschnider, 724, 725, 726, 728 Dykers v. Townsend, 714 Dworsky v. Arndtstein, 585, 597 E. Eagan v. Scully, 108 Early v. St. Pat. Church Society, 786, 792 Eaton V. Hall, 606 Ebbitt V. Dunham, 726 Ebling V. Dreyer, 226, 262, 305, 338, 339, 425, 426 Eckert v. Wilklow, 218 Edlich V. Ominder, 666 Edson V. Bartow, 323 Edson V. Howell, 87 Table of Cases. XXV Edwards v. Bishop, 298 Edwards v. McLean, 629 Edwards v. Header, 754 Edwards v. The Farmers' Fire Ins. Co., 713 Edwards v. Varick, 311, 312 Eells V. Lynch, 243, 264, 265, 328, 372, 37S, 381, 384, 416, 479 Egan V. Hart, 93 Egener v. N. Y. & Rockaway Beach Co., 96 Egerer v. N. Y. C. & H. R. R. Co., 79 Ehle, In re, 226 Ehrsam, Matter of, 87 Eisemann v. Lapp, 718 Elder v. Rouse, 675 Eldredge, Matter of, 269, 332 EHas V. Schweyer, 445 Elk V. Wilkins, 99, 100, 129 Elliot V. Merryman, 434 Elliott, Matter of, 218 Ellis V. Horrman, 755 Elmendorf v. Lockwood, S9S, 596, 598 Elwood V. Klock, 562, 784 Ely V. Fahy, 627 Ely V. Holton, 852 Ely V. Schofield, 752, 828 Emanuel v. Ellis, 878 Embree, Matter of, 217, 218, 222 Embury v. Sheldon, 216, 223, 274, 389, 410, 411 Emens v. St. John, 391, 392 Emigrant Indus. Sav. Bank v. Regan, 564, 571 Emmet v. Emmet, 285 Emmons v. Cairns, 285 English V. Marvin, 151 Ensign v. Ensign, 821 Ensign, Matter of, 577 Equitable L. A. Society v. Brennen, 690, 70s, 706 Erickson v. Quinn, 724, 728 Erkenbach v. Erkenbach, 575, 576 Ernst V. Crosby, 640 Ernst V. Parsons, 699 Erwin v. Hurd, 452, 557 Erwin v. Soper, 396, 677 Estate of King, 774 Estes V. Wilcox, 726 Ettenheimer v. Hefferman, 114 Evans v. Sims, 724 Everdell v. Hill, 657 Everett v. Everett, 361, 385 Everitt v. Everitt, 247, 264, 328, 332, 380, 478, S19, 552 Evertson v. Sawyer, 608 Ewell v. Hubbard, 153 Ex parte Oakey, 891 Eyck V. Witbeck, 364, 665 Eysamen v. Eysamen, 197, 346, 355 F. Faile v. Crawford, 665 Fairchild v. Fairchild, 335, 361 Fanger v. Caspary, 659 Fargo V. Squiers, 550 Farley v'. Howard, bgg Farmers' Bank v. Gregory, 334 Farmers' Loan & Trust Co. v. Car- roll, 368, 403, 404, 405, 477, 518, S19 Farmers' Loan & Trust Co. v. Ferris, 284 Farmers' Loan & Trust Co. v. Hughes, 442 Farmers' Loan & Trust Co. v. Wil- son, 499 Farmers & Merchants' Bank v. Smith, 821 Farrar v. Bernheim, 717 Farrar v. McCue, 447, 556 Farrell v. Manhattan Railway Co., 638, 642 Fay V. Holloran, 613 Fay V. Taylor, 102, 104, 119, 402, 467, 510 Featherstonhaug v. Bradshaw, 608 Fenton v. Fenton, 378, 383 Fenton v. Reed, 561, 874 Felix V. Devlin, 754, 755, 762 Fellows V. Heermans, 484 Felter v. Ackerson, 185, 370 Felton V. City of Cincinnati, 141, 627 Ferguson v. Broome, 395 Ferlat v. Gojon, 576 Fern v. Osterhout, 566 Fernbacher, Matter of, 505 Ferris v. Nelson, 333 Ferris v. The Pub. Admr., 873 Field V. Schieffelin, 434 Finlay v. King, 168 Finn v. Lally, 717 Finn v. Sleight, 565 First National Bank v. Mortimer, 400, 505 Fish V. Fish, 717 Fisher v. Fields, 352, 407, 436 Fisher's Estate, In re, 321, 372, 375 Fitch V. Armour, 629 Fitzgerald v. Fauconberge, 496 Fitzgerald v. Topping, 425 Fitzgerald v. Quann, 240, 540 Fitzpatrick v. Fox, 724, 729 Fitzsimmons, Matter of, 451 Flanagan v. Flanagan, 308, 506 Flanagan v. Staples, 312 Fleet V. Dorland, 140 Table of Cases. Fleet V. Simmons, 556 Fleischman v Toplitz, 628 Fleming v. Burnham, 534 Fletcher v. Ashburner, 842 Flinn v. McDerraott, 591 Florida v. Furman, 59 Flory V. Houck, 724, 725, 729 Floyd V. Carow, 839 Foltz V. Huntley, 145 Folz V. Shalow, 634 Fonda, J. & G. R. R. Co. v. Olmstead, 654 Font V. Lucas, 696, 697, 703, 70S, 707 Foose V. Whitmore, 358, 405 Foote V. Bryant, 358, 361, 362, 657 Foote V. Colvin, 360 Foote V. Foote, 362 Forbill V. City of New York, 95, 96 Ford V. Cobb, 840 Forman v. Marsh, 842 Forrest v. Forrest, 575, 576, 593 Forster v. Scott, 709 Forsyth v. Hartnett, 610 Fort V. Burch, 758 Fortmann v. Wheeler, 717 Fosdick V. Cornell, 283 Fosdick V. Town of Hempstead, 347 Foster, Matter of, 416 Foster v. Clifford, 656 Fowler v. Depau, 390, 391, 392 Fowler v. Griffin, 312 Fowler v. Ingersoll, 262, 266, 381, 860 Fowler v. Poling, 698 Fox V. Fee, 305 Fox, Matter of Will of, 17, 45, 392, 399 Fox V. Moyer, 724 Frarabois v. Jackson, 70 Frank v. N. Y., L. E. & W. R. R. Co., 609 Frank v. Schloss, 661 Franke v. Youmans, 629 Frankel, Matter of, 653 Franklin v. Brown, 627, 630 Franklin v. Minertzhagen, 265, 384, 38s Franklin v. Osgood, S34 Frazer v. Hoguet, 248, 264, 265, 266, 384 Frazer v. Western, 355, 731 Frear v. Pugsley, 469, 472, 551 Frear v. Sweet, 751, 752, 757, 758, 759, 824 Freeborn v. Wagner, 107, 313, 506, 509, 512, 646 Freedman v. Oppenheim, 791, 809 Freeman v. Coit, 185 Freeman v. Fairlie, 54 Freeman v. Freeman, 653 Freeman v. Ogden, 622 Freligh v. Piatt, 841 French v. Carhart, 647 Fries v. N. Y. & Harlem R. R. Co., 761 Fritts, Matter of, 321 Fronascone, In re, 102 Frost V. Akron Iron Co., 633, 638, 639, 641, 642 Frost V. Peacock, 565 Frost V. Raymond, 679 Fryer v. Rockefeller, 719, 791, 792 Fuller V. Artman, 661 Fuller V. Brown, 724, 728 Fuller V. Yates, 588 Gage V. Gage, 363, 653, 713 Gale V. Heckraan, 629 Galewsky v. Applebaum, 641 Gall V. Gall, 874 Gall V. Gall, 656 G?i!lagher v. Kingston Water Co., 94 Gallavan v. Gallavan, 390 Gallie v. Eagle, 274 Gantert, Matter of, 391, 392, 394, 396, 397> 40s, 519, 528, 529 Gardiner v. Dering, 139 Gardner v. Dembinsky, 405, S4l. 542 Gardner v. Ogden, 445 Gardner v. Sheldon, 284 Gardner, Matter of, 185, 226, 308, 506, S3I- 532, 536 Garfield v. Hatmaker, 360, 361, 364 Garland v. Garland, 327 Garrett v. Wood, 96 Garrick v. Menut, 633 Garth v. Cotton, 24, 42, 144, 239, 311 Garvey v. McDevitt, 245, 321, 375, 376, 380, 404, 478, 479. 480, 553 Garvey v. Union Trust Co., 322, 326 Gates V. Dudgeon, 469, 713 Gates V. Gates, 657, 853 Gates V. Green, 626 Gawne, Matter of, 357, 370 Gaylord v. Knapp, 675 Gebhard v. Addison, 706 Gedney v. Gedney, 333 Geery v. Geery, 726 Geisse v. Bunce, 216, 217, 218, 274,409 Geiszler v. De Graaf, 69S, 699, 700 Genet v. Hunt, 245, 256, 262, 380, 417, 466, 469, 475, 480, 492, 49S, S04, 505, 508, 509, 512, S19, S50 Geneva Mineral Spring Co. v. Cour- sey, 659 Table of Cases. xxvu Geofroy v. Riggs, loo, loi, 104, 105, 114, 119, 121 Germond v. Jones, 388, 503, 563, 565 Goodright v. Cornish, 272, 289 Gibbs V. Esty, 564 Gibbs V. N. Y. Life Ins. Co., 460, 498 Gibert v. Peteler, 702, 703, 704, 70s, 706 Gibson V. Nat. Park Bank, 722 Gibson v. Thomas, 752, 757, 758, 760, 814, 821, 824 Gibson, Matter of, 418, 419 Gilbert v. Brunell, 343 Gilbert, Estate of, 444 Gilbert v. Peteler, 171, 173, 238, 263 Gilbert, Matter of, 154, 386 Gilchrist v. Rea, 534 Gilchrist v. Stevenson, 444 Gilder v. Post, 561 Gilis V. O'Toole, 712 Gilfoyle v. Cahill, 609 Gilhooley v. Washington, 640 Gillespie v. Brooks, 140 Gillett V. Stanley, 108, 129 Gillig V. Maas, 754, 814 Gillis V. Brown, 138, 193, s6s Gilman v. Healy, 320, 323 Gilman v. McArdle, 401, 497 Gilman v. Reddington, 249, 269, 274, 322, 326, 383, 403, 408, 518, 522 Giovanna, In re, 99 Glacius V. Fogel, 678 Claddings v. FoUett, 324 Glaser v. Glaser, 588 Glenn v. Glenn, 576 Globe Marble Mills Co. v. Quinn, 153 Goddard v. Schmoll, 791, 809 Godine v: Kidd, 853 Goebel v. Iffla, 425 Goebel v. Wolf, 204, 216, 217, 218, 321, 522 Goelet V. Con, 333, 334 Goetz V. Ballon, 468 Goetz, Matter of, 395 Goff V. Eames, 728 Goldberg v. Lavinski, 712 Golden v. Prince, 98 Goldsmith v. Goldsmith, 362 Goldstein v. Goldstein, 581 Gomez v. Gomez, 146 Gomez V. Gomez, 274, 409, 431, 493 Gomez v. The Tradesmen's Bank, 565 Gonzales, In re, 102 Gonzales v. Williams, 105 Goodell V. Jackson, 87 Goodell V. Pierce, 3SS Goodman v. National Ice Co., 89 Goodrich v. Russell, 103, 113, 114, 116, 126 Goodright v. Cornish, 25, 201 Goodsell V. Goodsell, 575 Goodnow .V. Pope, 622 Goodyear v. Vosburgh, 87 Gordon, Matter of, 588 Gordon, Matter of, 217, 220, 301 Gott V. Cook, 24s, 269, 322, 323, 326, 377, 384, 416 Gould V. Cayuga County National Bank, 343, 367 Gould V. Partridge, 702, 703, 705 Gourlay v. Campbell, 842 Gouverneur v. National Ice Co., 92, 93 Graff V. Bonnett, 374, 379, 380, 399, 400, 414 Graham v. Graham, 583 Graham v. Luddington, 837 Graham v. Stern, 64 Grand Trunk Ry. Co. v. Cent. Ver- mont R. Co., 622 Grandin v. Hernandez, 755, 759 Graney v. Berrie, 334 Granger v. Crouch, 755 Gratz V. Land & River Imp. Co., 751, 75S, 7S9, 762, 830 Grave v. White, 142 Graves v. Berdan, 626, 629 Graves v. Deterling, 169, 172, 181 Graves v. Deterling, 619 Gray v. Barton, 760 Gray v. Gray, 566, 583, 588, 589 Gray v. Kaufman Dairy, etc., Co., 625 Greason v. Keteltas, 274, 407, 428, 430 Greely v. Shelmidine, 738 Green v. Armstrong, 712 Green v. Putnam, 562 Green v. Warnick, 755, 757. 758, 819 Green v. Weckle, 712 Greenby v. Wilcocks, 6g8 Greene v. Greene, 108, 242, 351, 353, 371, 381 Greene v. Reynolds, 563 Green's Sons v. Salas, loi, 102 Greenland v. Waddell, 259, 261, 390, 442, 44S, 446, 447, 526, 534, 556 Greenleaf Case, 718 Greenough v. Greenough, 728 Greenwood v. Marvin, 336, 361 Gregg v. Tamsen, 608 Gremly v. Shelmidine. 363 Greyston v. Clark, 308, 506, 507 Griffen v. Ford, 245 Griffeth v. Beecher, 839 Griffin v. Baust, 712, 714 Griffin v. Ford, 381 GrifBn v. Griffin, 575, 576 Griffin v. Marquardt, 730 XXVlll Table of Cases. Griffin V. Shepard, 196, 198, 200, 207, 247, 307, 313 Griffin, Matter of, 349, 4SI. 4^2. 4S4 Griffith V. Griffith, 731 Griffith V. Pritchard, 103 Griffiths V. Vere, 319 Grimstone v. Carter, 821 Griscott V. Green, 708 Griswold v. Perry, 539 Gross V. Mathewson, 506 Grosser v. City of Rochester, 334 Grotrian, Matter of, 588 Grout V. Townsend, 673 Grout V. Townsend, 158, 163 Grout V. Van Schoonhoven, 416 Guaranty Trust Co. v. Galveston City R. Co., 666 Guernsey v. Guernsey, 645 Guidet V. Brown, 584, 596 Gulick V. Griswold, 542, 543 Guthrie v. Gardner, 364 Guy V. Craighead, 724, 725 Gwyer v. Gwyer, 216 H. Hadden v. Spader, 401, 734 Haendle v. Stewart, 371, 520 Hafner v. Hafuer, 321, 326, 327, 374, 37S, 384 Hafner, Matter of, 375, 384, 390 Hagedorn v. Lang, 712, 713, 714 Haight V. Brisbane, 406, 520 Haight, Matter of, 165, 168, 169 Hall V. Ballantine, 638 Hall V. Erwin, 657 Hall V. Hall, 103, 104, 117 Hall V. La France Engine Co., 216, 227 Hall V. Pearson, 452 Hall V. Southmayd, 608 Hall V. The State of New York, 88, 92 Hall V. Thompson, 109 Hall V. Western Transportation Co., 610 Hall, Matter of, 874 Hall, Matter of, 404, 427 Hallas V. Bell, 716, 717 Hallett V. Thompson, 140, 380, 399 Hallett V. Wylie, 626, 695 Halpin v. Phenix Ins. Co., 823 Halsey v. Beer, 99 Halsey v. Reed, 677 Harris v. Clark, 320 Ham V. Van Orden, 246, 247, 256, 311, 313 Hamilton v. Austin, 88 Hamilton v. Graybill, 629 Hamilton v. N. Y. Stock E. B. Co., 543 Hamilton v. Wilson, 698 Hamilton v. Wright, 716 Hamlin v. Stevens, 656 Hammond v. Eckhart, 636 Hammond v. Pennock, 563 Hammond, Matter of, 842 Hanford v. Artcher, 728 Hannan v. Osborn, 863, 867, 870 Harbeck v. Sylvester, 617 Harbeck, Matter of, 469, 551 Hardenburg v. Lakin, S9S. 604 Harding v. Elliott, 726 Harding v. Glyn, 468, 519 Harper v. Clayton, 400, 561, 734 Harrington v. Erie County Sav. Bank, 380, 420, 42s Harrington v. Harte, 510 Harriot v. Harriot, 185, 188, 242 Harriot v. Prime, 393, 406 Harris v. Clark, 266, 379 Harris v. Fly, 397 Harris v. Frink, 151, 653 Harris v. Hiscock, 142 Harris v. Norton, 758, 762 Harris v. Strodl, 226, 262 Harrison v. Harrison, 249, 266, 383 Harrison v. McAdam, 285, 305 Harsha v. Reid, 701 Hart V. Hart, 14S, 146, 6SS Hart V. Lyon, 704 Hart, Matter of, 168, 170, 171, 263, 264 Harton v. Harton, 407 Harty v. Doyle, 203, 555 Harvey v. Brisben, 520, 525, 528 Harvey v. Kennedy, 394, 397 Harvey v. McDonnell, 726, 735, 736 Hascall v. King, 87, 321, 372, 37s, 385 Haskell, Matter of, 308, 506' Haslett, In re, 226 Hastings v. Hastings, 699, 701 Hatfield v. Sneden, 162, 490, 837 Hathaway v. Hathaway, 592 Hatton v. May, 384 Hauensteiji v. Lynham, loi, 118 Haug v. Schumacher, 385 Haug v. Schumaker, 223, 224, 24s Hauptmann v. Hauptmann, 336, 566 Hausaer v. Dahlman, 638 Hauselt v. Patterson, 678 Havemeyer, Matter of, 445 Hawkins v. Dunmore, 363, 657 Hawley v. Bradford, 565 Hawley v. James, 319, 320, 321, 322, 563, 607 Hawley v. James, 131, 142, 144, 156, 186, 203, 220, 229, 231, 24s, 246, 247, 250, 251, 260, 26s, 372, 373, 375. 376, 377, 379, 380, 383, 404, 42s, 428, 430 Hawley v. Ross, 439, 441 Table of Cases. XXIX Hawkins v. Kemp, S39. S42 Haxtun v. Corse, 322, 323 Hay V. Earl of Coventry, 254 Hay V. Knauth, 6S3, 703, 704 Hayden, Matter of, 320 Haydock v. Stow, 714 Hayes v. Kershaw, 355 Hayes v. Schultz, 153 Hayes v. The People, 561 Haynes v. Aldrich, 608, 633, 636, 638, 642 Haynes v. Sherman, 252, 266 Haynes v. Sherman, 381, 385 Hays V. Hibbard, 890 Hays V. Union Trust Co., 583 Healy v. Healy, 657, 853 Healy, Matter of, 867 Heard v. City of B'klyn, 167 Heard v. Horton, 220 Hears v. Simpson, 223 Heasman v. Pearse, 240 Heath v. Barmore, 168, 646, 668 Heath v. Hewitt, 221, 222, 647 Hecht V. Heerwagen, 630 Hedges v. Riker, 428 Hedges v. West Shore Railroad Co., 90 Heermans v. Burt, 350, 353, 357, 370, 386, 501 Heerman v. Robertson, 248, 358, 368, 370, 373, 392, 404, 478 Heilbrun v. Hammond, 7S5, 761, 792, 793 Heinrich v. Mack, 634 Heinz, Matter of, 417 Helck V. Reinheimer, 350, 351, 354, 356, 357 Helmes v. Shoemaker, 503, 513 Helms V. Helms, 362 Henderson v. Henderson, 358, 368, 381, 403, 405, 478, 479, 480, 553 Henderson v. Henderson, 143, 266, 280 Hendricks v. Hendricks, 321 Hendricks v. Isaacs, 585, 596, 597 Hendricks v. Robinson, 724 Hendricks v. Walden, 724 Heney v. Brooklyn Benevolent So- ciety, 113, 115 Heney v. Brooklyn Benev. Society, 243, 253, 258, 289, 886 Hennessy v. Patterson, 223, 224, 225, 226, 227, 229, 232, 259, 270, 291, 312, 313. Henning v. Miller, 712 Henriques v. Stirling, 844 Henry v. Davis, 550 Henschol, In re, 774, 790, 791 Herter v. Mullen, 608, 633, 636, 638, 639, 642 Herter v. Muser, 656, 712 Hervey v. Hervey, 582 Hervy, Matter of, 396 Herzog v. Title Guarantee & Trust Co., 185, 218, 265, 266, 382, 384, 416 Hess V. Martin, 654 Hetzel V. Barber, 390, 392, 402, 467, 479,. 520, 668, 755, 758 Hewlins v. Shipman, 703 Henshaw, Matter of, 709 Herb v. Metropolitan Hospital, 699 Herman v. Roberts, 95 Herriot v. Prime, 226, 232, 521, 533 Herrmann v. Curiel, 610 Hersee v. Simpson, 218, 224 Hickock V. Bunting, 370 Hicks V. Gildersleeve, 890, 892 Hicks V. Stebbins, 563 Higinbottom v. Stoddard, 717 Hiles V. Fisher, 334 Hill V. Hoole, 757 Hill V. Nye, 852 Hill V. Ressegieu, 681, 700 Hill V. Supervisors, 62 Hill V. Warsawski, 657, 658 Hillen v. Islein, 216, 221, 247, 379, 380, 42s, 453, 468, 469, 477, 478, 527, 529, 541, 548, 550, 553 Hilliker v. Bast, 285, 301, 645 Hinchcliffe v. Shea, 563, 596, 597 Hinckel v. Stevens, 58, 62, 64, 65, 80, 81, 90 Hindley v. Hindley, 566, 591, 592 Hine v. Hine, 890 Hine v. Howe, 729 Hine v. N. Y. El. R. R. Co., 55 Hirsch v. Graves Elevator Co., 767 Hirsh v. Auer, 358 Hiscock V. Phelps, 335, 336 Hitchcock V. Harrington, 569, 841 Hitchins, Matter of, 371 HoUenback v. Fleming, 786, 792 Hoadley, In re, 226 Hobart v. Hobart, 894 Hobson V. Hale, 235, 242, 252, 256, 265, 381, 383, 392, 479, 553, 842 Hodge V. Sloan, 705 Hoes V. Van Hoesen, 395 Hoey V. Kenny, 526 Hoffman v. Armstrong, 87 Hofifman v. Delihanty, 610 Hoffman v. Susemihl, 729 Hogan V. Kavanaugh, 394 Hogarty, Matter of, 218 Hogarty, Matter of, 418 Hohman, Matter of, 859 Holden v. Burnham, 724, 729 Table of Cases. Holden v. Strong, 377, 378 Holland v. Alcock, 347, 348, 369, 371, 404, 446, 450, 451, 454, 519, 521, 527 Holland v. Brown, 760, 76: Holliday v. Marshall, 656 Hollister v. Simonson, 654, 714 Holly V. Gibbons, 395, 396 Holly V. Hirsh, 368, 403, 478 Holmes v. Grant, 814, 821 Holmes v. Mead, 347 Holsman v. De Gray, 709 Holt V. Fleischman, 702, 70s, 706 Holzdesber v. Forrestal, 654 Hone V. Fisher, 67s Hone V. Van Schaick, 358, 416, 592 Hone's Exrs. v. Van Schaick, 242 Hood V. Hood, 842 Hooker v. Ctimraings, 62, 63 Hooker v. Hooker, 265, 374, 378, 384, 385, 416 Hopkins v. Cameron, 588 Hopkins v. Hopkins, 31 Horn V. Keteltas, 821 Horsfield v. Black, 274, 327, 376, 442 Horstman v. Flege, 588 Horton v. McCoy, 842 Hoschke v. Hoschke, 814, 821 Hosford V. Ballard, 174, 606, 619 Hoske V. Gentzlinger, 634 Hotaling v. Marsh, 222 Houghtaling v. Marvin, 499 House V. House, 570, 677, 737 House V. Jackson, 224, 227, 232, 562, 563, 567, S9S House V. Raymond, 542 Howard v. Barnes, 843, 865 Howard v. Howard, 716 Howard Ins. Co. v. Halsey, 755 Howard v. Larkin, 146 Howard v. Moot, 113, 117, 805 Howe Machine Co. v. Avery, 802 Howe V. Sommers, 729 Howe V. Van Schaick, 304 Howell V. Newman, 564 Howells V. Hettrick, 756, 762, 814, 816, 821 Howie V. Kasnowitz, 661, 662 Howland v. Clendenin, 274 Howland, Matter of, 224, 259, 322, 38s Howland v. The Union Theolog. Sem., 64s Hoysradt, Matter of, 376, 409, 431, 493, 565 Hoyt V. Dillon, 171, 314 Hoyt, Estate of, 400 Hoyt V. Hoyt, 395, 397, 398 Hoyt V. Hoyt, 542, 543 Hoyt, Matter of, 321, 375 Hubbard v. Gilbert, 468, 472, 476, 511 Hubbard v. Housely, 370, 376, 389 Hubbell v. Hendrickson, 757 Huber v. Case, 232 Ruber v. Ryan, 629 Huff V. Wheeler, 558, 564, 585, S93. 597. Huggins v. Lewis, 370 Hughes V. Harlam, 742 Hughes V. Jones, 108 Hughes V. Mackin, 519 Hull V. Hull, 322 Hulme V. Tenant, 489 Hulse V. Bacon, 597, 666, 784 Humbert v. Trinity Church, 51, 54, 55, 57, 62, 595, 782 Hume V. Randall, 472, 474, 495, 504, 505, 508, 509, 512, 513 Hungerford v. Wagoner, 609, 632, 633, 634, 639 Hunt v. Amidon, 700 Hunt V. Johnson, 752, 759, 791 Hunt V. Kingston, 845, 850, 870, 871, 877, 882, 885 Hunt, Matter of, 308 Hunt, In re, 339 Hunter v. Hunter, 144, 173, 180, 182, 265, 384 Hunt-Foalsten v. Furber, 384 Huntington v. Huntington, 568 Hurley v. Brown, 697, 702, 706 Hurrell v. Hurrell, 390, 393, 406, 520, 521 Hurst V. Hurst, 751 Hutchins v. Hebbard, 501 Hutchins v. Van Vechten, 362, 370, 420, 652, 657 Hutton V. Benkard, 464, 546 Hutton V. Weber, 791 Hyatt V. Clark, 714 Hyatt V. Pugsley, 115, 847, 864, 867, 878 Hyde V. Bloomingdale, 728 Hyde v. Wolf, 724 Hynes v. McDermott, 874 Hynes v. McDermott, 561 I. Ibert, Matter of, 396 lUensworth v. Illensworth, 646 lUman v. Davis, 221 Illinois Central R. R. v. Illinois, 90, 93 Ingalls V. Morgan, 761 Ingersoll, Matter of, 385 Inglis V. Trustees of Sailors' Snug Harbor, 40, 241, 293 Irving V. Campbell, 759. 764, 7S6, 790, 791, 792, 793, 794, 809, 818, 8>o Table of Cases. XXXI Irving V. De Kay, 233, 376, 403 Isenhart v. Brown, 589 Jackson ex dem., etc. v. Adams, 126 Jackson ex dem. Blanchard v. Allen, 144 Jackson v. Badger, 725 Jackson v. Beach, 113 Jackson ex dem. v. Blanshau, 382 Jackson v. Brainard, 717 Jackson v. Brinkerhoff, 716 Jackson v. Brown, 129 Jackson ex dem. NicoU v. Brown, 268, 292, 541 Jackson v. Brownson, 139 Jackson v. Brush, 622 Jackson ex dem. v. Bryan, 151, 631, 633 Jackson v. Bull, 507 Jackson v. Burgott, 751 Jackson v. Cadwell, 355, 662, 663, 722, 760 Jackson v. Chamberlain, 751 Jackson v. Churchill, 588 Jackson v. Cuerden, 632 Jackson v. Davenport, 550 Jackson v. Delacroix, 656 Jackson v. Delancey, 663 Jackson v. De Lancey, 439, 622 Jackson ex dem., etc. v. Demont, 107, 134 Jackson v. De Witt, 565 Jackson v. Dillenger, 185 Jackson v. Dunsbagh, 25, 279, 288, 351. 355, 671 Jackson v. Edwards, 464, 474, 492, 496, S04, 505,. 532, 751 Jackson v. Ellis, 632 Jackson v. Elston, 717 Jackson ex dem. v. Etz, 114 Jackson v. Fitzsimons, 115, 116, 885 Jackson v. Forrest, 364 Jackson v. Foster, 717 Jackson v. Garnsey, 722 Jackson ex dem., etc. v. Gilchrist. 595, 782, 837 Jackson v. Given, 758 Jackson v. Green, 115, 116, 849, 886 Jackson v. Groat, 109, 138, 140 Jackson v. Gumaer, 718, 790, 791 Jackson ex dem., etc. v. Halstead, 87, 88 Jackson ex dem. v. Harper, 622 Jackson ex dem. v. Hart, 46 Jackson ex dem., etc. v. Harrison. 169 Jackson v. Harrow, 792 Jackson v. Hendrick, 312, 838, 844, 850, 860 Jackson v. Hill, 129, 717 Jackson v. Hilton, 312, 850, 860 Jackson ex dem. Van Rensselaer v. Hogeboom, 144, 174 Jackson ex dem., etc. v. Holloway, 595, 783 Jackson v. Humphreys, 774, 791 Jackson ex dem., etc. v. Ingraham, 10, 46, 70, 80 Jackson v. Jackson, 837 Jackson v. Jackson, 116 Jackson v. Leggett, 117 Jackson v. Littel, 734 Jackson v. Lunn, 66, 103, 116, 126 Jackson v. Lyon, 118 Jackson ex dem. v. Mancius, 668, 673 Jackson ex dem., etc. v. Marsh, 7i Jackson v. Matsdorf, 891 Jackson v. McLoed, 152, 631 Jackson v. Middleton, 231 Jackson v. Miller, 622 Jackson ex dem. v. Mills, 360 Jackson ex dem. v. Morse, 360 Jackson ex dem. v. Murray, 58, 80 Jackson v. O'Donaghy, 564, 600 Jackson v. Osborn, 791 Jackson v. Parkhurst, 152, 631 Jackson v. Peck, 724 Jackson v. Post, 754, 755, 756 Jackson v. Robins, 108, 308, 503, 506, S13 Jackson v. Rogers, 632 Jackson ex dem., etc. v. Sample, 8 Jackson v. Schauber, 300 Jackson v. Schutz, 63, 68, 81, 83, 106 108 Jackson v. Sebring, 355 Jackson v. Selleck, 837 Jackson v. Silvernail, 109, 138, 140 Jackson v. Smith, 22 Jackson v. Staats, 283 Jackson v. Stackhouse, 661 Jackson v. Stevens, 334 Jackson ex dem., etc. v. Thurman, 863 Jackson v. Todd, 716 Jackson v. Topping, 171, 172 Jackson v. Van Valkenburg, 758, 817 Jackson ex dem. v. Vanderheyden, 596- Jackson v. Van Zandt, 154, 157, 187, 188, 84s Jackson v. Vickory, 792 Jackson v. Waldron, 229 Jackson v. Walsh, 731 xxxii Table of Cases. Jackson ex dem., etc. v. Waltermire, 64s, 646 Jackson v. Waltermire, 563 Jackson v. Walters, 226, 562, 596 Jackson ex dem., etc. v. Waters, 70 Jackson v. White, 65, 73 Jackson ex dem. v. Willard, 574, 841 Jackson ex dem. v. Wood, 652 Jackson v. Woodruff, 717 Jacobs V. Morrison, 724, 728, 730 Jacques v. Short, 612, 700 Jseger v. Kelley, 724, 728 Jaffe V. Harteau, 627 Jager v. City of New York, 95 James v. Coe, 625 James v. James, 412 James v. Johnson, 820 James v. Morey, 154, 820, 828 James v. Pope, 636 Janpole v. Lasky, 274 Jarvis V. Babcock, ^T; Jarvis v. Lynch, 91 Jay V. Lee, 370, 451 Jay V. Wilson, 809 Jaycox V. Hovencamp, 755 Jenks V. Miller, 91, 93 Jennes v. Landes, loi Jennings v. Conboy, 235, 249, 390, 402, 459, 464, 467, 468, 472, 473, 474, 478, Sio, S" Jennings v. Jennings, 381, 382 Jennings v. McCarthy, 151 Jeremiah v. Pitcher, 360, 363 Jesup V. Pringle Memo. Home, 200, 205, 245, 257, 258, 266, 270, 293, 386 Jewett V. Schmidt, 442 Johnson v. Bush, 765, 802 Johnson v. Cole, 890, 892 Johnson v. Corbett, 600, 677 Johnson v. Cushing, 505 Johnson v. Doll, 638 Johnson v. Fleet, 344, 345, 346, 349, 35 1, 353, 3S8, 420, 425, 441 Johnson v. Johnson, 725 Johnson v. L. L R. R. Co., 130 Johnson v. Oppenheim, 628 Johnson v. Spicer, 126 Johnston v. Bates, 709 Johnston v. Spicer, 82, 83 Johnstown Cheese Mfg. Co. v. Veghte, 95, 96 Jones V. Clark, 622 Jones V. Fleming, 583, 584. 585. 591 Jones V. Hand, 332 Jones V. Harris, 415 Jones V. Jones, 576, 597 Jones V. Jones, 663 Jones V. Jones, 524 Jones V. Meacham. 129 Jones V. Nichols, 169, 172, 370 Jones V. Rielly, 174, 181, 182, 610, 619 Jones V. Salter, 415 Jones V. Say & Scale, 428 Jones V. Wright, 717 Jones, Matter of, 444 Jones, Matter of, 335 Joos V. Fey, 331, 334 Jordan v. Underbill, 780, 796 Jordan v. Van Epps, 568 Jourdan v. Haran, 563 Journeyman Cordwainer's Case, 55, 62, 63 Jurgens v. Rogge, 588 Rahn v. Hoge, 703, 705 Kahn v. Mount, 704 Kahn v. Simons, 625 Kain v. Fisher, 841 Kain V. Larkin, 724, 725, 733, 734 Kalish V. Higgins, 725 Kalish V. Kalish, 208, 233, 242, 266, 310, 320, 385 Kane v. Astor's Exrs., 492 Kane v. Gott, 266 Kane, Matter of, 324 Karstens v. Karstens, 217 Katz V. Kaiser, 824 Keenan, Matter of, 890 Keep V. Keep, 725 Keleman, Matter of, 387 Kelley v. Case, 596 Kelly V. Hoey, 274, 370, 452, 453, 541, ,557 Kelly V. Harrison, 66 Kelly V. Hogan, 308, 506, 307, 509> 512 Kelly V. Kelly, 864, 867 Kelly V. Kelly, 217 Kelly V. Owen, 99, 100, 116 Kelly V. Partridge, 630 Kelly V. Pratt, 104, 114 Kelsey v. Webb, 400 Kelso V. Lorillard, 216 Kemp V. Kemp, 466, 472, 473, 480, 481, 519, 522 Kemp V. N. Y. Produce Exchange, 852, 8S3 Kenada v. Gardner, 622, 716 Keneda v. Gardner, 716 Kendall v. Case, 308, 506 Kenna, Matter of, 816 Kennedy v. Hoy, 266, 385 Kennedy v. Mills, 588 Kensington v. Bonserie, 737 Table of Cases. XXXlll Kent V. Church of St. Michael, 226, 231, 262, 30s, 339 Kent V. Hopkins, 890 Kenyon v. See, 247 Kenyon v. See, 312 Kernochan v. Marshall, 232, 274, 478 Kernochan v. Marshall, 378, 382, 403, 410 Kernochan v. N. Y. El. R. R. Co., 186 Kernochan v. Wilkins, 609, 714 Kerr v. Dougherty, 323 Kessler v. Friede, 245, 270, 386 Ketcham v. Ochs, 636, 638, 639, 642 Ketcham v. Wood, 759 Keyser v. Coe, 56 Kiah V. Greenier, 875 Kibler v. Miller, 546 Kidd V. Conway, 662, 676 Kierstedt v. Orange & Alexandria R. R. Co., 609 Killam v. Allen, 265, 321, 375 Killam v. State of New York, 769 Kilpatrick v. Barron, 226, 262, 305 Kilpatrick v. Johnson, 320, 322, 327 Kimball v. Chappell, 542 Kimbel v. Kimbel, 588 Kimberly, Matter of, 218 Kimberly, Matter of, 332 Kincaid v. Kincaid, 362 Kine v. Farrell, 6S7 King V. Brown, 712 King V. Donnelly, 441, 444, 445, 446, 447 King V. Post, 765 King V. Rundle, 348 Xing V. Talbot, 427 King, Estate of, 774 Kingman v. Soarrow, 90 Kingsland v. Rapelye, 300 Kinnan v. Guernsay, 525 Kinney v. Watts, 679, 680 Kinnier v. Rogers, 388, 389, 393, 39s, 404, 472, 474, 480, 50s, S08, 521 Kingsland v. Murray, 395 Kinley v. Van Dusen, 387 Kinsey v. City of New York, 95 Kinyon v. Kinyon, 891 Kip V. Hirsch, 354, 438 Kip V. N. Y. & Harlem R. R. Co., 145 Kirk V. Kirk, 226, 262, 305, 339, 371, 442, 44,6. 454. 527 Kirk V. Richardson, Matter of, 188 Kirsch v. Tozier, 420, 425, 823 Kirtz V. Peck, 646 Kissam v. Barclay, 152 Kissam v. Dierkes, 496, 538, 539, 542 iii Kitchings v. Brown, 706 Kittle V. Van Dyck, 570 Klingenstein v. Goldwasser, 632 Knapp V. Burton, 716, 717, 718 Knapp V. McGowan, 373 Kneller v. Lang, 717 Knickerbocker Ice Co. v. Forty-sec- ond St. R. R. Co., 91, 93, 94 Knickerbocker Ice Co. v. Shultz, 70, 89 Knight V. Association, 89 Knope V. Nunn, 333 Knower v. Cent. Nat. Bank, 729 Knowles v. McCamley, 783 Knox V. Jones, 252, 410 Koezly v. Koezly, 397 Konvalinka v. Schlegel, 403, 404, 566, 588, 589 Kortright v. Cady, 574 Koss, Matter of, 321, 375, 646 Kountze v. Helmuth, 709 Kraemer v. Adelsberger, 172, 814, 820, 821 Kramer v. Kramer, 722 Krekeler v. Aulbach, 153 Kull V. Kull, 118 Kunhardt v. Bradish, 218 Kursheedt v. U. D. S. Institution, 558 Kurtz V. Potter, 706 Kurtz V. Wiec'kmann, 185 Kyle V. Kyle, 567 Ladue v. Cooper, 700 La Farge v. Brown, 269, 381 Lafayette Ins. Co. v. French, 100 Laird v. McGeorge, 627 Lake v. Craddock, 335 Lake v. De Lambert, 444 Lake v. Gibson, 335 Lake Shore & Michigan Ry. Co. v. Ohio, 93 Lakeside Paper Co. v. State, 94 Lakey v. Scott, 312, 839, 840 Lamb v. Lamb, 653, 738 Lamb v. Lamb, 608, 610 Lambert v. Huber, 716, 719 Lambert v. The People, 774 Lamont v. Cheshire, 751, 760 L'Araoureux v. Van Rensselaer, 378, 408, 416, 52s Landon v. Walmuth, 472 Lane v. Nickerson, 819 Lane, Matter of, 852 La Neve v. La Neve, 760, 761 Lang V. Ropke, 243 265, 322, 32,8, 374, 378, 382, 384, 404. 416, 478 XXXIV Table of Cases. Lang V. Wilbraham, 384, 416 Langdon v. Astor's Exrs., 890 Langdon v. Mayor, 70, 75, go, 92, 93. 769 Langley v. Westchester Trust Co., 333 Lansing v. Goelet, 841 Lansing v. Stone, 23 Lansing v. Thompson, 628, 629 Lamed v. Donovan, 752, 757, 824, 828 Larned v. Hudson, 151, 632 Larrabee v. Van Alstyne, 587, 588 Larreau v. Davignon, 126, 887 Lasher v. Lasher, 566 Lathers v. Coates, 629 Lattimer v. Livermore, 706 Lattin v. McCarty, 833 Latourette v. Latourette, 561, 598 Lauderdale Peerages, 873 Laughran v. Ross, 153 Laughran v. Smith, 609, 712, 714 Laverty v. Moore, 760 Lawrence v. Bayard, 209, 222, 229, 245, 313 Lawrence v. Brown, 564, 622 Lawrence v. Burrell, 629 I^awrence v. Cook, 405 Lawrence v. Lawrence, 305 Lawrence v. Lawrence, 596 Lawrence v. Miller, 560, 564, 595 Lawrence v. Town of Hempstead, SS, 64, 72 1-awrence v. Whitney, 701 Lawrence, Matter of, 233 Lazarus v. Rosenberg, 675 Leach v. Leach, 837 Leary v. Corvin, 657 Leary v. Corvin, 362 Leary v. Leary, 114, 116, 867, 871 Leask \. Horton, 660, 694 Leavitt v. Pell, 488 Lechmere v. Lloyd, In re, 31 Lee V. Hunter, 724 Lee V. Tower, 589, 592 Lee V. Timken, 361, 585, 591, 592 Le Fevre v. Phillips, 726 Leggett V. Dubois, 117 Leggett V. Firth, 308, 480, 507 Leggett v. Hunter, 445, 447, 526, 534 Leggett V. Mut. Life Ins. Co., 680 Leggett V. Perkins, 274, 346, 358, 369, 370, 372, 377, 379, 404, 473 Lehman, Matter of, 325 Lehmeyer v. Moses, 628 Leinhardt v. Kalcheim, 702, 705 Lemon v. The Bradley-Currier Co., 6S7 Lent V. Howard, 368, 389, 416 Lenz V. Aldrich, 627 Leonard v. Burr, 160, 161, 200, 239, 242, 243, 24s, 247, 380, 389, 391 Leonard v. Clough, 653, 759 Leonard v. Steele, 566 Leonard v. The Hotel Majestic Co., 690 Lerche v. Brasher, 767 Lese V. Miller, 840, 860 Leslie v. Marshall, 257, 258, 293 Lessees of Levy v. McCartee, 115 Lesser v. Lesser, 392 Lester v. Foxcroft, 653 Leussen v. Morich, 653 Leusenhop v. Einsfeld, 821 Leverich v. City of Mobile, 91, 92 Levy V. Brush, 361, 712 Levy V. Levy, 50, S5, 347, 348, 37i, 446, 450, 451, 454 Levy V. Levy, 68, 600 Levy V. Long Island Brewery, 742, 747 Levy V. McCartee, 450, 886 Levy V. Schreyer, 690, 706 Lewis V. Angermiller, 625 Lewis V. Donohue, 656 Lewis V. Howe, 223, 224, 311, 353, 3S4, 355, 404, 406, 496 Lewis V. O. N. & P. Co., 153 Lewis V. Smith, 583, 588 Licht'inberg v. Herdtfelder, 726 Lichtig V. Poundt, 141 Lindo V. Murray, 391, 392, 393, 485, 520, 521, 541 Lingin v. Lingin, 874 Lingsweiler v. Hart, 216, 232 Lion V. Burtiss, 22 Littel V. Wright, 634 Little V. Martin, 610 Little Falls Nat. Bank v. King, 391, 394, 395, 396 Livermore v. Northrup, 725 Livingston v. Gordon, 521 Livingston v. Greene, 216, 223, 224 Livingston v. Livingston, 305, 427 Livingston v. Potts, 140, 142 Livingston v. Reynolds, 139 Livingston v. Stickler, 109, 138, 14a Livingston v. The Peru Iron Co., 717 Livingston v. Potts, 625 Livingston v. Proseus, 716 Livingston v. Sage, 146 Livingston v. Tanner, 152, 632 Livingston v. Tucker, 321 Livingston, Matter of, 354, 436, 445, 446 Table of Cases. Lloyd V. Rosbee, 638 Lobrasciano, Matter of, 118 Locke V. Mabbett, 400 Locke V. F. L. & T. Co., 494, 497 Lockrow V. Horgan, 627, 628 Lockwood V. Mildeberger, 546 Loddington v. Kime, 24, 259, 291 Loder v. Hatfield, 218 Lodiger v. Canfield, 397 Loeschigk v. Hatfield, 360 London & Southwestern Ry. Co. v. Gomm, 263, 701, 702, 704, 705 Long V. Rankin, 515 Long Island R. R. Co. v. Conklin, 646, 672 Longworth v. Deane, 6go, 702 Look Tin Sing, In re, 99, 100, loi Loos V. Wilkinson, 333, 725, 731 Lord Waterpark v. Austen, 146 Lore V. Dierkes, 497, 725, 73i, 73^ Lorillard v. Coster, 237, 249, 315, 332 Lose V. Miller, 218 Losey v. Stanley, 219, 227, 274, 275, 290, 370, 373, 386, 410, 411, 425 Lott V. Wykoff, IS4, 188, 205, 284 Lougheed v. D. B. Church, 253, 257, 258, 293 Lounsbury v. Purdy, 362 Lovett V. Gillender, 319, 320 Lovett V. Kingsland, 320 Lovett V. The Steam Saw-Mill As- sociation, 764, 76s, 802 Lowenhaupt v. Stanisico, 375 Lowndes v. Huntington, 53, 59, 89 Lowry v. Smith, 583 Ludlam v. Ludlam, 98, loi, 102 Ludlow V. Van Ness, 116, 117, 754 Ludwig V. Bungart, 653, 656 Luger V. Goerke, 633, 638 Luhrs V. Eimer, 99, 103, 114, US. "fi- 118, 126, 887 Lumley v. Wabash Ry. Co., loi Lupton V. Lupton, 39s, 397, 398 Lutz, Matter of, 874, 875 Lynch v. Clarke. 98, 99, loi, 102, 844, 886 Lynch v. Livingston, 764, 774, 785, 793 Lynch v. Livingston, 355 Lynch v. Sauer, 141, 627, 630 Lynes v. Townsend, 535 Lyon V. Morgan, 760, 761 Lyon V. Weeks, 386 Lyons v. Ostrander, 219, 223, 229, 290, 311, 840 Lyons v. Steinhardt, 398 Lyons v. Weeks, 217 Lytle v. Beveridge, 187, 285, 301, 426 M. McArthur v. Gordon, 657 McCaffrey, Matter of, 274, 290, 409, 430, 493 McCartee v. Orphan Asylum, 103, 446 McCartee v. Teller, 580, 581, 583, 584 McCarthy v. Ely, 627 McCarthy v. Marsh, 102, 844, 865, 877, 878, 886 McCartney v. Bostwick, 360, 361, 364, 367 McCarty v. Deming, 113, 114 McClellan v. Grant, 358, 362 McClure, Matter of, 308 McConnell v. Barber, 725 McComb V. Title Guarantee & Trust Co., 353, 357, 378, 404. 478 McCormick, Matter of, 378 McCorn v. McCorn, 395, 397, 398 McCosker v. Brady, 374, 441 McCray v. McCray, 653 McCrea v. Purmont, 714 McCready v. Metropolitan Life Ins. Co., 393, 521 McCreery v. Day, 662 McCreery's Lessees v. Sommerville, 887 McComb, Matter of, 396, 842 McDonald v. McDonald, 333 McDonald v. O'Hara, 390 McDonald v. Walgrove, 108, 507, 513 McDougall V. Dixon, 371 McEvoy V. Appleby, 400 McFadden v. Allen, 153 McFarlan v. Watson, 609 McGillis V. McGiliis, 103, 117, 122, 216, 224, 227, 229, 230, 247, 250, 257, 260, 305, 339, 883 McGillivray, Matter of, 445 McGlashan v. Tallmadge, 628 McGlynn v. McGlynn, 400 McGowan v. McGowan, 265, 382, 384, 416, 578 McGregor v. Brown, 653, 712 McGregor v. Comstock, 21, 22, 44, 45, 66, 115, 649, 650, 878 McGregor v. The Board of Ed. City of N. Y., 622 McGuckin v. Milbank, 699 McGuire v. McGuire, 242, 320, 374, 382 Mcllvaine v. Cox's Lessee, 66 Mcllvaine v. Kadel, 581 Mcintosh V. Lown, 627 Mclntyre v. Barnard, 660 Mclntyre v. Costello 562, 586, 596 McKay v. Lasher, 764, 766 xxxvi Table of Cases. McKay v. Mumford, 633, 638 McKeen v. Fish, 558, 564 McKenna v. Brooklyn Union El. R. R. Co., 702, 703 McKenzie v. Harrison, 661, 662 McKinnon v. Bliss, S9. 70, 80 McKinstry v. Sanders, 223 McKay, Matter of, 393, 396, 485, 563, McLean v. Freeman, 233 McLean v. McDonald, 513 McLean v. Swanton, 115, 116 McLoughney, Matter of, 383 McManus v. McManus, 397 Mc Michael v. Russell, 564, 567, 570 McNabb v. Pond, 841 McNaney v. Hall, 735 McNulty V. McNulty, 194 McPherson v. Rollins, 425, 754, 761, 823 McPherson v. Smith, 405 McPhillips V. Fitzgerald, 333, 335 McRea v. Bank of Troy, 152 McRea v. Central Nat. Bank, 152, 153, 840 McRea v. McRea, 891 McSorley v. Wilson, 384, 416 McWhorter v. Stewart, 571 Macauley v. Porter, 814, 821 Macauley v. Smith, 761 Macauley v. Smith, 742 Mack V. Anderson, 824 Mack V. Austin, 675 Mackall v. Olcott, 657, 714, 738 Mackay v. Gabel, 729 Mackinnon v. Barnes, 59 Macklin v. McNetton, 608 Mackreth v. Symmons, 757 Macy V. Sawyer, 396, 539 M. A. Baptist Church v. Baptist Church in O. St., 44, 62, 63, 145 Magill V. Brown, 450 Mahaney v. Carr, 853 Mahler v. Transportation Co., 56, 89, 90 Mahnken Co. v. Pelletreau, 757 Maitland v. Baldwin, 466, 472 Majestic Hotel Co. v. Eyre, 629 Mai V. City of Rochester, 94 Malins v. Brown, 713 Mallon, Matter of, 445 Malloney v. Horan, 596 Maloney v. Tilton, 372 Manchester v. Tibbetts, 725, 728 Mandeville v. Campbell, 361 Manhattan Co. v. Evertson, 563 Manhattan Real Estate Assn. v. Cudlipp, 224, 226, 312, 333 Manice v. Manice, 198, 205, 217, 223, 227, 233, 241, 251, 259, 260, 261, 320, 322, 323, 326, 372, 385, 389, 391, 403 Manier v. Phelps, 389, 391, 395, 404, 437, 520 Mann v. Retsof Mining Co., 96 Mann v. Willey, 95 Manning v. Manning, 23 Mannix v. Riordan, 666 Mansbach v. New, 243, 266, 385, 389 Maquart v. La Farge, 641 Marden v. Dorthy, 718, 755, 756, 760 Marie v. Garrison, 711, 713 Market & Fulton Nat. Bank v. Nas- sau Trust Co., 374 Marks v. Dellagio, 629 Marks v. Halligan, 185, 410 Marsellis v. Thalhimer, 304, 305, 837, 883 Marsh v. Gilbert, 893 Marsh v. Hague, 185 Marshall v. Davies, 756 Marshall v. Mosely, 540, 613, 616, 841 Martens, Matter of, 290 Martin v. Funk, 372 Martin v. O' Conner, 709 Martin v. Rector, 145, 150, 170, 178, 182, 634 Martin v. Stoddard, 824 Martin v. Waddell, 10, 52, 55, 56, 58, 59 Martindale v. Western N. Y. & P. R. R. Co., 762 Marvin v. Smith, 274, 408, 416, 596 Marvin v. Smith, 495, 496, 501, 514, 525, 328, 529, 530 Marx V. McGlynn, 104, 117, 388, 390, 391 Mason v. Jones, 243, 304, 322, 377, 883 Mason v. Lenderoth, 699 Mason v. Mason's Exrs., 265, 320, 322, 374 Mason v. Thwing, 496, 646, 668 Mason v. Tietig, 636 Mass. Nat. Bank v. Shinn, 144, 14^, 153 Masterson v. Townshend, 185 Masury, Matter of, 460, 494, 497 Mathews v. Ray, 98 Mathews v. Studley, 265, 385 Matteson v. Falser, 243, 267, 736 Matthews v. Daitiainville, 758, 763 Matthews v. Duryea, 564, 565, 571, 572 Matthews v. Sheehan, 675 Table of Cases. XXXVll Maurice v. Graham, 245, 256, 285, 384, 416 May V. Gillis, 627, 628, 629, 630 May V. May, 444, 446 May ell v. Brown, 647 Maynard v. Maynard, 114 Mayor, etc. v. Hart, 54, 55, S7. 62, 64, 91, 92 Mayor v. Laux, 627 Mayor, Matter of the, IS3 Mayor, etc., of New York v. Mabie, 679, 752 Mayor v. Stuyvesant, 464, 469 Mead v. Gregg, 361 Mead v. Madden, 609 Mead v. Martens, 705 Mead v. Mitchell, 222, 226, 305 Meakings v. Cromwell, 527, 534 Meakings v. Cromwell, 117, 392 Mechanics', etc., Bank v. Dakin, 726 Mechanics' Bank, Matter of, 44s Medcef Eden's Case, 845 Med. College Lab. v. N. Y. Univer- sity, 170, 654, 657, 658, 663 Meehan v. Brennan, 468 Meeker v. Wright, 334 Meldon v. Devlin, 327, 519, 521, 522, 524, 526 Mellen v. Mellen, 387, 389, 390, 393, 396, 406, 520, S2I Mendell v. Levis, 266, 392 Mentz V. Newwitter, 713 Merchant v. White, 852, 853 Merchants' Bank v. Thomson, 596 Meriam v. Harsen, 784, 790 Mericlo, Matter of, 844, 875 Merriman, Matter of, 223 Merritt v. Merritt, 556, 842 Merritt v. Merritt, 633, 636 Merritt v. North R. R. Co., 761, 762 Merritt v. Smith, 622, 716 Mersereau v. Kemp, 308, 506 Merritt, Matter of, 890 Mersereau, Matter of, 600 Meserole v. Sinn, 141, 627, 628 Messing v. Messing, 334 Messman v. Egenberger, 889, 890 Metcalf v. Crystal Park Assn., 645, 646 Metcalf V. Union Trust Co., 418, 419 Meyer, Matter of, 308, 309 Michaels v. Fisher, 87, 612, 619 Mick V. Mick, 103, 116 Middlebrook v. Corwin, 141 Millard v. Eyre, 444 Miller v. Ball, 653, 712, 714 Miller v. Coudert, 891 Miller v. Emans, 311, 329, 330 Miller v. Gilbert, 218 Miller v. Levi, 159, 161 Miller v. Link, 791 Miller v. Macomb, 861 Miller v. Miller, 844, 849, 874 Miller v. Miller, 844, 849, 872, 873, 87s Miller v. Miller, 400 Miller v. Miller, 334 Miller v. Miller, 588, 841 Miller v. Plumb, 153 Miller v. Van Schwarzstein, 198, 223 Miller v. Warren, 718 Miller v. Wright, 275, 354 Miller, Matter of, 156, 219, 261, 271 Mills V. Mills, 24s, 257, 262, 380, 381, 382, 383, 418 Mills V. Mills, 588, 589 Mills V. Van Voorhies, 564, 569, 57°, 571 Mills, Matter of, 425 Miner v. Brown, 334 Minges v. Mathewson, 308, 309, 506 Minor v. Happersett, 99 Minot V. Minot, 211, 220, 223, 224 Minton v. N. Y. El. R. R. Co., 761 Mintzer v. Supreme Council, 662 Mirick v. Bashford, 618 Mitchel V. United States, 10, 70, 80 Mitchell V. Bartlett, 665 Mitchell V. Clary, 639 Mitchell V. Thorne, 841 Mitchell V. Van Allen, 308, 505 Moak V. Moak, 301 Moehring v. Mitchell, 489 Moehring, Matter of, 504, 511 Mofifat's Executors v. Strong, 41 Moflfatt V. Smith, 608, 622, 628, 674 Mofifett V. Elmendorf, 332, 333, 390 Moll V. McKeon, 756 Mollan V. Griffith, 677 Moller V. Presbyterian Hospital, 707 Monarque v. Monarque, 224, 231, 30s, 338, 339, 342, 385 Moncrief v. Ross, 388, 391, 519 Monongahela Nav. Co. v. United States, 93 Monson v. Paine, 216, 217 Montanye v. Montanye, 384 Montauk Assn. v. Daly, 712, 713, 714 Montgomery v. Montgomery, 874 Montignani v. Blade, 221, 382 Moody v. Moody, 717 Moody v. Smith, 714 Mooney v. Byrne, 742, 820 Moore v. American Loan & Trust Co., 435 Moore v. Appleby, 274 XXXVlll Table of Cases. Moore v. Hegeman, 358, 370, 377. 404 Moore v. Littel, 137, 167, 213, 214, 216, 219, 220, 221, 223, 224, 227, 229, 230, 232, 247, 256, 285, 299, 301, 30s, 311, 312, 429, 650, 668, 673 Moore v. Lyons, 216, 223 Moore v. Mayor, 560, 564 Moore v. Pitts, 646 Moore, Matter of, 159, 187, 188, 269, 284, 28s, 290 Moores v. Townshend, 833 Moran v. The Pittsburgh, Cin. & St. Louis R. R. Co., 622 Moriarta v. McRea, 563, 564, 565 Morgan v. Masterson, 320 Morgan v. Powers, 632, 633 Morgan v. Raynor, 501 Morgan v. Turner, 657 Morgan, Matter of, 890, 891 Morgan, Matter of Petition of, 445 Morres v. Sickly, 397, 398 Morris v. Phelps, 698 Morris v. Ward, 360, 647, 760, 842, 859, 860 Morse v. Morse, 358, 370, 389, 404 Morse v. Salisbury, 660, 759 Mortimer v. N. Y. El. R. R. Co., 55 Mosely v. Marshall, 737 Mosely v. Mosely, 722, 726 Moser v. Moore, 760 Moses, In re, loi, 113 Mott V. Ackerman, 250, 256, 259, 275, 290, 307, 447, 534, 542, 546, 556 Mott V. Clayton, 51, 55, 56, 57, 63, 64 Mott V. Oppenheiraer, 704 Mott V. Palmer, 152, 153, 698 Mott V. Underwood, 333 Mowatt V. Carew, 233 Moxley v. N. J. & N. Y. R. R. Co., 703 Muehlberger v. Schilling, 814 Muhlenberger v. Pooler, 146 Muir V. Hodges, 561 Mullen, Matter of, 259 Mulligan v. Cox, 429 Mulry V. Mulry, 371, 441 Mulry V. Norton, 94, 96 Mumford v. Brown, 638 Mundy v. Munson, 583 Munoz V. Wilson, 666 Munro v. Merchant, 66, 103 Murdock v. Gififord, 840 Murdock v. Kelly, 392 Murdock v. Waterman, 824 Murphy v. Briggs, 724, 730 Murphy v. City of Brooklyn, 94 Murphy v. Whitney, 245, 247, 380 Murray v. Miller, 353, 403, 404, 40S, 406, 451, 452, 468, 478, 481, 552, 840 Murray v. Sweasy, 821 Murray v. Wooden, 129 Murray, Matter of, 266, 382, 385, 450 Murtha v. Wilcox, 224 Mut. Life Ins. Co. v. Corey, 766 Mut. Life Ins. Co. v. Dake, 761, 762, 814, 817 Mut. Benefit Loan Co. v. Jaeger, 683, 687, 689, 694, 747 Mutual Life Ins. Co. v. Shipman, 464, 544, 546, 561, 564, 598 Myer v. McCollough, 305, 342, 527 Myers v. Bell Telephone Co., 186, Myers v. Bolton, 333 Myers v. Burns, 618, 709 Myers v. Eddy, 398 Mygatt V. Coe, 695, 696, 698, 700, 701, '°' N. Naney v. Hall, 729 Nash V. Kemp, 717 Nat. Bank of Commerce v. Nat. Bank of N. Y., 353, 354, 355, 356, 362, 386 National Bank of Port Jervis v. Bonnell, 666 Nat. Fire Ins. Co. v. Loomis, 714 Nat'l Tradesmen's Bank v. Wetmore, 736 Naylor v. Arnitt, 428 Nearpass v. Newman, 412 Neiderstein v. Cusick, 385, 431 Neilson v. Brown, 245 Nellis V. Munson, 137 Nellis V. Nellis, 189, 216, 245 Nelson v. Brown, 566, 588 Nelson v. Russell, 216, 223, 224 Nesmith, In re, 321, 426 Neuberger v. Kein, 722, 726, 729 Newcomb v. Newcomb, 418 Newell V. Nicholl, 233 Newkirk v. Newkirk, 108, 165, 168, 313 Newton v. Bronson, 469, 714 N. Y. C. & H. R. R. R. Co. v. Brock- way B. Co., 51, 73, 75, 750, 768, 769, 770, 805 N. Y. Cent. & H. R. R. R. Co. v. Brennen, 82 N. Y. Dry Dock Co. v. Stilman, 353 N. Y. L. & W. R. Co., Matter of. 157, 216, 217, 284 N. Y. Life Ins. Co. v. Allison, 152 N. Y. Life Ins. & Trust Co. v. Baker, 321 Table of Cases. xxxix N. Y. Life Ins. & T. Co. v. Liv- ingston, 546 N. Y. Life Ins. Co. v. Mayer, 565 N. Y. Life Ins. Co. v. Viele, 285 N. Y. Life Ins. Co. v. Viele, 852, 853 N. Y., Matter of, v. Comrs. of Land Office, 91 N. Y., R. E., etc., Co. v. Motley, 628 N. Y. Speedway, Matter of, 54, 57. 70, 71, 91 Nicholls V. Sheffield, 240 Nichols V. Levy, 231 Nichols V. Nichols, 370 Nichols V. Nichols, 121 Nichols V. Park, 361, 562, 577, 595 Nichols V. Williams, 633 Nicoll V. N. Y. & Erie Ry. Co., 164. 165, 168, 169, 171, 179, 180, 181, 19s, 207, 295, 311, 313, 314. 437, 646, 668, 707 Nicoll V. Walworth, 410 Niles V. Chase, 614 Niles V. Stevens, 533, 534 Nimmo v. Harway, 628 Niver v. Crane, 361 Noble V. McGurk, 714 Nodine v. Greenfield, 222 Nolan V. Command, 103 Norcross v. James, 695, 697, 699, 700, 702, 703, 70s, 707 Norman v. Wells, 618, 708, 709, 782, 792 Norris v. Beyea, 156, 185, 188, 189, 233, 24s, 284 Norris v. Norris, 662 Northam v. Dutchess County Mut. Ins. Co., 373, 409, 410 Northern Pacific Railway Co. v. United States, 93 North Hempstead v. Gallagher, 55, 64 Northport, R. E. & I. Co. v. Hen- drickson, 716 Norton v. Stone, 361 Nostrand v. Durland, 88 Nowlan v. Trevor, 632, 633, 641 Noyes v. Blakeman, 274, 380, 399, 408, 414, 41S, 416 Noyes v. Burton, 731 Nye V. Hoyle, 701 N. T. Bank v. Wetmore, 726 Nugent V. Jacobs, 729 Oakes v. DeLancey, 92 Oakes v. Massey, 853 Oakey, Ex parte, 891 Oakley v. Loening, 141 Oberbagh v. Patrie, 55, 79, 83 Obermeyer v. Jung, 756 O'Brien v. Flackstein, 757, 761, 762 O'Brien v. Mooney, 265, 384, 416 O'Callaghan v. Barrett, 828 Ocean Bank v. Olcott, 361 O'Connell v. Madden, 334 O'Conor v. McMahon, 334 Odell V. Durant, 144 Odell V. Montross, 713 Odell V. Youngs, 542 O'Donnell v. Mclntyre, 621, 622, 674, 69s, 696 O'Donoghue v. Boies, 305, 354, 386, 427 Ogden v. Ogden, 417 Ogden V. Smith, 533, 534 O'Gorman v. Harby, 629 O'Hara v. Dudley, 347, 358, 450 O'Hara, Matter of, 406, 479, 521, 658 Oliphant v. Burns, 755, 821 Oliver v. Frisbie, 556 Olmstead v. Olmstead, 298, 646 Olson V. Schevlovitz, 641 Onderdonk v. Mott, 367, 445 Oneida Street, Matter of Opening of, 79 O'Neill v. Morris, 613 O'Rourke v. The Henry Prouse Copper Co., 192 Ormiston v. Olcott, 427 Orser v. Hoag, 66, 116 Osgood V. Dewey, 608 Osgood V. Franklin, 533 O'Shinsky v. Greenberg, 625 Osterhout v. Shoemaker, 793 Oswald V. Gilbert, 147 Ould V. Wash. Hospital, 244, 258, 293 Overbagh v. Patrie, 169 Oviatt V. Hopkins, 417, 418, 419 Owen V. Evans, 757 Owen v. Miss. Soc. M. E. Church, 404, 45 1 Owens V. Owens, 308, 506 Oxley V. Lane, 108, 170, 263, 266 Paddock, Matter of, 394, 397 Page V. Waring, 755, 756, 758, 760 Paget V. Melcher, 305, 312, 392 Paget V. Melcher, 216, 218, 224, 233 Paige V. Schenectady Railway Co., 55, 58, 62, 63, 64, 80 Palmer v. Culbertson, 891, 892, 894 Palmer v. Hallock, 400 Palmer v. Hicks, 92 xl Table of Cases. Palmer v. Horn, 285 Palmer v. Marshall, 376, 389, 403 Palmer v. Palmer, 333 Palmer, Matter of, 37i. S06 Paolillo V. Faber, 767, 79i, 792, 830 Pappenheim v. Metropolitan El. R. R. Co., 186 Parfitt V. Kings Co. Gas Co., 728 Parish v. Parish, 390, 521 Parish v. Rogers, 138, I44. I4S Parish v. Ward, 113, 115 Parker v. Allen, 444 Parker v. Beer, 396 Parker v. Conner, 730 Parker v. Foote, 63 Parker v. McCluer, 890, 891, 892, 893, 894 Park V. Castle, 633 Parks V. Parks, 382, 383, 645, 646 Parmalee v. Oswego & Syracuse R. R. Co., 151, 166, 168 Parmly v. Oswego & Syracuse R. R. Co., n Parsell v. Stryker, 142, 144, 174, 177 Partridge v. Haven, 362, 891 Parsons, Matter of, 506 Paterson. v. Ellis, 308, 646 Pattat V. Pattat, 659 Paul V. Paul, 7s8, 761, 762 Paul V. Virginia, 100 Pawling Savings Bank v. Washburn, 469 Payn v. Beal, 616, 841 Payne v. Becker, 561, 564, 598 Peacock v. Monk, 497 Pea Patch Island Case, 56 Pearce v. Colden, 656 Pearce v. Moore, 716 Peck V. Mallams, 814 Peck v. Sherwood, 140, 737 Peck V. Young, 66 Pegram v. El. R. R. Co., 186 Pells V. Brown, 41, 284 Peltz V. Learned, 140 Penfield, Matter of Town of, 96 Penn v. Lord Baltimore, 52, 53, 55, 57, 148 ^ ^ . Penrhyn State Co. v. Granville, etc., L. Co., 9S People ex rel., etc. v. Annis, 606 People V. Arnold, 82 People ex rel., etc. v. Bacon, 373, 408 People ex rel., etc. v. Batchelor, 543 People V. Bostwick, 665 People V. Canal Appraisers, 81, 90 People V. Clarke, 68, 70 People V. Clarke, 10, 65, 70, 80 People ex rel., etc.. Commissioners, 75 People V. Conklin, 83, 103 People ex rel., etc. v. Darling, 609, 632, 633 People ex rel., etc. v. Dederick, 87 People V. Deehan, 75 People V. Denison, 82 People ex rel., etc. v. Fitzgerald, 817, 823 People ex rel., etc. v. Goelet, 634. 638 People ex rel., etc. v. Green, 461 People V. Harrison, 791 People ex rel., etc. v. Haskins, 173, 177, i8s People V. Hurlbutt, 805 People V. Irvin, 115, 886, 8.87 People ex rel., etc. v. Jessup, 72, 89, 93 People ex rel., etc. v. Jones, 89, 90, 91, 92 People V. Karlsiol, 578 People ex rel., etc. v. McAdam, 192 People v. Livingston, 10, 53, 57, 59, 70, 73 People V. Manning, 170 People V. Mauran, 73, 74 People ex rel., etc. v. McAdam, 286 People ex rel., etc. v. Miller, 817, 823 People v. Mould, 90, 91 People v. Newell, 99, 100 People V. New York & S. L F. Co., 89, 93, 769 People V. Norton, 444, 445 People V. Page, 53, 58, 65, 81, 90 People V. Peoples Coal Co., 91 People ex rel., etc. v. Plimley, 98 People V. Powers, 347, 450, 452, 454, 521 People ex rel., etc. v. Register, 792 People ex rel., etc. v. Rickert, 712 People V. Schermerhorn, 73, 89 People V. Shackno, 633 People V. Simonson, 257, 258, 293, 347, 381, 4SI People V. Snyder, 66, 113, 774, 805 People V. Staten Island Ferry Co., 75 People V. Supervisors, etc., 75 People V. Trinity Church, 2, 10, 46, 60, 70, 72, 80, 82, 134, 173 People V. Vanderbilt, 93 People V. Van Rensselaer, 8, 12, 14, 44, S3, 59, 79, 82, 134, 176, 266 People ex rel., etc. v. Walker, 543 People V. Woodruff, 91 Table of Cases. xu People ex rel., etc. v. Woodruff, 91 Pequignot v. Detroit, 102 Perkins v. Smith, 87 Perry v. Perry, 576 Perry v. Tynen, 543 Peters v. Delaplaine, 343, 367 Peters, Matter of, 185, 217 Petlies V. McGowan, 755, 828 Pfarr, Matter of, 874 Pfister V. Writer, 217 Pfluger V. Carmicheal, 152 Phelan v. Brady, 760 Phelps V. Nowlen, 95, 96 Phelps V. Phelps, 562, 563, 567 Phelps V. Phelps, 322, 382 Phelps' Exrs. v. Pond, 242, 321, 347, 454 Phillips V. Davies, 392, 496, 539, 542 Phillips V. Phillips, 370, 405 FhcEnix v. Livingston, 410 Phoenix Ins. Co. v. Continental Ins. Co., 618, 70s Phoenix v. Trustees of Columbia Col- lege, 389, 391, 842 Pickert v. Windecker, 216, 313 Pickett V. Barron, 762 Pierce v. Pierce, 583, 608, 609 Pierrepont v. Barnard, 662 Pierson v. Speyer, 95 Piggot V. Mason, 146, 264 Pilfard, Matter of, 546 Pine V. Mayor, etc., of New York, .95 Pintsch Compressing Co. v. Bergin, 102 Piper V. Barse, 891, 892 Pitts V. Pitts, 576, 577 Piatt V. Finck, 604 Plath V. Kline, 610 Plumb V. Taylor, 169 Plumber, Matter of, 397 Pluramer v. Murray, 884 Poillon V. Poillon, 562, 563, 564, 594, S9S Pollard's Lessee v. Hagan, 93 Pollock, Matter of, 140 Pond V. Bergh, 203, 312, 313, 855, 8S7, 863, 864, 867 Poor V. Horton, 561, 563, 716 Pope V. Allen, 760 Pope V. Mead, 561, 598 Post V. Benchley, 555 Post V. Hover, 385, 646 Post V. Kearney, 709 Post V. Post, 151, 632, 633 Post V. Weil, 166, 168, 169 Post, Matter of, 442 Potter V. Chapin, 450 Potter V. Cromwell, 152, 840 Potter V. Hodgman, 375, 378, 392, 42s Potts V. Hart, 735 Powcey V. Bowen, 429 Powell V. Tuttle, 461 Power V. Cassidy, 519, 521 Powers V. Bergen, 134, 425, 426 Powers, Matter of, 396, 397 Prahar v. Tousey, 627, 629, 630 Pratt V. Baker, 153 Pray v. Hegeman, 319, 320, 322, 323, 326 Preiss v. Le Poisdevin, 700 Priest V. Gumming, 116 Prentice v. Geigher, 95 Prentice v. Jansen, 390, 500, 520 Prentiss v. Bowden, 726 Preston v. Hawley, 607, 608, 610 Pretzfelder v. Strobel, 333 Prewitt V. Wilson, 722, 725, 729 Price V. Price, 567, 576, syj Prichard v. Smith, 404, 406, 479, 521 Prichard v. Thompson, 451 Priester v. Hohlock, 148, 607 Priester v. Wielandt, 636 Prindle v. Anderson, 151, 609, 632, 633. 634, 712 Price V. Pestka, 334 Proctor V. Thompson, 656, 713 Proprietors of the Church in Brat- tle Square v. Grant, 164, 181 Proesus v. Mclntyre, 361, 891 Prospect Park & Coney I. R. R. Co. V. Williamson, 167 Provost V. Provost, 274, 410 Pruyne v. Adams Furniture & Mfg. Co., 802 Pugsley v. Aiken, 191, 63c Purdy v. Collyer, 654 Purdy V. Hayt, 205, 206, 216, 226, 227, 232, 242, 24s, 248, 251, 252, 253, 256, 260, 261, 262, 266, 268, 269, 270, 271, 272, 278, 2S1, 331, 332, 64s, 647 Purdy v. Huntington, 754, 757, 761, 821 Purdy v. Purdy, 588 Purefoy v. Rogers, 31 Putnam v. Lincoln Safe Deposit Co., 189 Putnam v. Westcott, 191, 286 Pyatt V. Waldo, 681, 700, 842, 844 Q. Quackenboss v. Kingsland, 217 Quackenboss v. Southwick, 445, 446 Quade v. Bertsch, 218 Quinn v. Quinn, 363 xlii Table of Cases. Raab, Matter of, 370 Racine v. Gillet, 451 Radley v. Kuhn, 158, 165, 168, 230, 247, 256, 259, 261, 262, 27s, 307, 379, 381, 416 Randall v. Sanders, 814, 821 Ranken v. Donovan, 666 Rankine v. Metzger, 274, 371, 372, 498, SIC, 520 Rapp V. Gottlieb, 757, 833 Rathbone v. Dyckman, 283, 284, 588 Rathbone v. Hooney, 426 Rounds, Matter of, 293 Rawson, Matter of, 874 Rawson v. Lampman, 346, 353, 386 Ray V. Adams, 709 Raymond v. Harris, 399, 400, 401, 415, 417 Raynor v. Lyon, 706 Raynor v. Timerson, 760 Raynor v. Wilson, 754, 755, 762 Read v. Bolger, 141 Read v. Livingston, 361, 724 Read v. Patterson, 394, 395 Read v. The Erie Railway Co., 680 Read v. Williams, 347, 393, 405, 406, 451, 452, 462, 468, 477, 478, 495, 519, 527, 528, 552 Reade v. Continental Trust Co., 520 Real Estate Corporation v. Harper, 683, 698 Reckhow v. Schanck, 631, 632 Recor v. Blackburn, 118 Redpath v. Rich, 115, 886 Reed v. Ganon, 760 Reed v. Underbill, 391 Reed v. Van Wert, 390 Reed, Matter of, 427 Reeder v. Sayre, 609, 632, 633, 656 Reeve v. Long, 304 Reeve, Matter of, 877, 887 Reeves v. Snook, 323, 326, 327 Regan v. Fosdick, 63s, 636, 638 Reich V. Dyer, 658, 664, 820 Reid V. Fitch, 364 Reid V. The Evergreens, 726 Reinisch, Matter of, 442 Reisert v. City of N. Y., 96 Reitz V. Reitz, 362 Remington v. Palmer, 654 Remington Paper Co. v. O'Dougn- erty, 764, 774, 793, 833 Ren ex rel. Hall v. Bulkeley, 515 Renner v. Muller, 100, 115, 887 Repanno Chemical Co. v. Victor Hardware Co., 729 Reynolds v. Denslow, 392, 403, 404 Reynolds, Ex parte, 444 Reynolds v. Reynolds, 575 Reynolds v. Reynolds' Exr., 397, 398 Reynolds v. Shuler, 153 Reynolds v. Strong, 334 Rexford v. Rexford, 761, 784, 785, 791, 792 Rhodes v. Canfield, 758 Rhodes v. Caswell, 226, 305 Rhodes v. Schwartz, 657 Rhodes v. Rhodes, 712 Rice V. Barrett, 242, 24s, 381 Rice V. Culver, 147, 627 Rice v. Harbeson, 678 Rich V. Beaumont, 354 Richards v. Northwest Dutch Church, 841 Richardson v. Pulver, 489, 490, 597. 783, 784, 792 Richardson v. United States, 89, 93 Richmond, Matter of, 396 Rickert v. Snyder, 699 Rider v. Mason, 400 Riggs V. Murray, 497 Riggs V. Pursell, 141 Righter v. Ludwig, 859 Rigney v. Coles, 623 Riker v. Leo, 450 Riley v. Hoyt, 761 Ring v. McCoun, 353, 354, 408 Ripson v. Hart, 6s7 Ritchmeyer v. Morss, 152, 153 Ritter v. Worth, 790, 791, 792 Riverside Park Extension, Matter of, 92 Robins v. Ackerly, S3, 59 Robbins v. Robbins, 362, 654 Robert v. Corning, 245, 247, 379, 380, 383, 388, ,•591, 40s. 480, 553 Robert v. Thompson, 145 Roberts v. Anderson, 721, 722 Roberts v. Baumgarten, 88, 89 Roberts & Co. v. Buckley, 728 Roberts v. Carey, 390, 411, 521 Roberts v. Roberts, 355 Robertson v. Sayre, 361 Robeson v. Robeson, 327 Robinson v. Adams, 378 Robinson v. Beard, 264, 709 Robinson v. Grey, 352 Robinson v. Robinson, 95 Robinson v. Williams, 759 Robinson, Matter of, 333 Rockefeller v. Lamora, 65, 89, 95 Rochester Savings Bank v. Bailey, 137, 666 Rochevot V. Rochevot, 519, 540 Rockwell V. Decker, 305 Table of Cases. xliii Rockwell V. Geery, 884 Rodgers v. Jones, 87 Rodriguez, In re, pg Roe ex dem. Brune v. Prideaux, 429 Roe V. Strong, 88, 93 Roe V. Vingut, 322, 385 Rogers v. Benson, 334 Rogers v. Eagle Fire Ins. Co., 25, 3SS, 648, 662, 663, 671 Rogers v. Jones, 88 Rogers v. Ludlow, 525 Rogers v. N. Y. & Texas Land Co., 361 Rogers v. Pell, 802 Rogers v. Rogers, 300, 371, 372, 442, 446 Rogers, Matter of, 320, 321 Roggen V. Avery, 661 Roisert v. City of New York, 95, g6 Roman v. Taylor, 628 Rome Exchange Bank v. Eames, 109, 140, 373, 380, 399 Roosa V. Harrington, 216, 218, 308, 312 Roosevelt v. Thurman, 108 Roosevelt v. Van Alen, 410 Root V. Stuyvesant, 235, 356, 357 Root V. Stuyvesant, 464, 465, 468, 475, 481, 493. 495. 548. 552, 553 Rorbach v. Crossett, 633 Rose v. Clark, 54, 55, 62 Rose V. Hatch, 308, 353, 354, 371, 446, 505. S06 Rose V. Rose, 170, 261, 264, 348, 453 Roseboom v. Mosher, 533 Roseboom v. Roseboom, 185 Roseboom v. Van Vechten, 22, 716 Rosenberg v. Lustgarten, 608 Roselle v. Klein, 736 Rosenfield, Matter of, 395 Ross v. Caywood, 731 Ross v. Kernan, 622 Rosseau v. Bleau, 665 Roth V. Jung, 706 Rothschild v. Goldenberg, 452, 454 Rothschild v. Roux, 264, 374, 378, 384, 416, 417 Roulston V. Roulston, 362 Rounds, Matter of, 257 Rowan v. Lytle, 152, 625, 632 Rowland v. Miller, 697, 701, 705, 706 Rowley, Matter of, 396 Royer Wheel Co. v. Fielding, 724 Royer Wheel Co. v. Fielding, 373 Ruckgaber v. Moore, 100, loi, 102, 121, 122 Rudd v. Cornell, 154, 189, 200, 218. 290, 297, 307 Rurasey v. N. Y. & E. R. R. Co., 90, '91 Rumsey v. N. Y. & N. E. R. R, Co., 92 Runcie, Matter of, 203 Rundle v. Van Inwegan, 577 Runyan v. Mersereau, 574, 841 Ruoflf v. Greenpoint Savings Bank. 194 Russell v. Briggs, 713, 738 Russell V. Hilton, 376, 389, 842 Russell V. Russell, 389, 390, 391, 395, 404, 405, 425, 480, 540, 553 Russell, Matter of, 217, 218, 223, 224 Russell, Matter of, 332, 333 Rust V. Low, 703 Rutgers v. Hunter, 146 Rutherford v. Aiken, 139 Rutherford, Matter of, 418 Ryan v. Carter, "jt, Ryan v. Dox, 362, 657 Ryder v. Coburn, 333 Ryder, Matter of, 226, 248, 269, 383 Sabbaton \. Sabbaton, 285 Safiord v. Safford, 562 Sage V. Cartwright, 668 Sage v. City of Gloversville, 140, 737 Sage V. The Mayor, 65, 90, 91, 92, 93 Sage V. Wheeler, 216, 223 St. Bernard v. Kemper, 146 St. Saviours Southwark v. Smith, 708 Salisbury v. Slade, 390, 392, 468, 842 Salliote v. King Bridge Co., 91, 02 Salmon v. Stuyvesant, 266, 469, 475, 480, 552. 553 Sammons v. City of Gloversville, 05 Sanders v. Down, 833 Sanders v. Reidinger, 718 Sanders, Matter of, 300 Sandford v. Ellithorp, 596, 597 Sandford v. McLean, 586, 596 Sandford v. Jackson, 588 Sandford v. Norris, 362 Sandford v. Sandford, 589 Sandford v. Sandford, 891 Sandford v. Travers, 680 Sanford v. Bennett, 97 Sands v. Hughes, 718 Sanger v. French, 654 Sanson v. Bushnell, 218 Sargent v. Board of Education, 65 Sarles v. Sarles, 139, 141 Sarsfield v. Healy, 151 xliv Table of Cases. Saugerties Bank v. Mack, 725 Saunders v. Hanes, 49, 150, 606, 607, 707 Saunders v. N. Y. C. & H. R. R. Co., 90, 91 Savage v. Burnham, 266, 383, 385, 533 Savage v. Burnham, 274, 588 Savage v. Crill, 603 Savage v. Murphy, 725 Savage v. Pike, 311, 313, 840 Sawyer v. Cubby, 245, 246, 247, 256 Sayles v. Best, 522 Sayre v. Wisner, 97 Sca'ttergood v. Edge, 244 Schafer v. Reilly, 665, 757 Scheitlin v. Stone, 724 Schenck v. Barnes, 734 Schenck v. Barnes, 377, 378, 379, 399, 400, 401, 41S, 417 Schenck v. Ellingwood, 529, 538, 55^ Schermerhorn v. Cotting, 320, 326 Schermerhorn v. Cotting, 382, 383 Schermerhorn v. Negus, 108, 266 Scherrer, Matter of, 506 Schettler v. Smith, 214, 232, 252, 266, 269, 291, 326, 327 Scheurer v. Brown, 757 Schieffelin v. Carpenter, 140, 142, 62s Schierloh v. Schierloh, 362 Schiff v. Leipziger Bank, 774 Schiflfer v. Pruden, 576 Schlereth v. Schlereth, 218, 233, 243, 257, 261 Schloss V. Huber, 641 Schmeig v. Kochersberger, 308, 506 Schmidt v. Limmer, 394, 397 Schmidt, Matter of, 873, 874 Schneider v. Mali, 623 Schoellkopf v. Coatsworth, 146 Scholia V. Scholle, 391 Schoonmaker v. Sheely, 300 Schott V. Burton, 328, 355, 360, 663 Schreiber v. Driving Club, 96 Schreyer v. Schreyer, 460, 494, 498 Schreyer v. Scott, 729 Schult V. Moll, 867 Schultze V. Mayor, 362 Schott V. Burton, 760 Schutt V. Large, 754, 755, 761 Schuyler v. Leggett, 712 Schuyler v. Smith, 633, 639 Schwenker v. Picken, 704 Schworin v. Goodrich, 713 Scott V. Douglas, 534, 556 Scott V. Guernsey, 218 Scott V. Howard, 563, 595 Scott V. Key, 874 Scott V. McMillan, 701, 702, 704 Scott V. Monell, 242, 382 Scott V. Stebbins, 39s, 398 Scott, Matter of, 445, 451 Scranton v. Booth, 610 Scranton v. Wheeler, 89, 90, 91, 92, Scroggs V. Scroggs, 555 Seabird Realty Co. v. Fuller, 629 Seaman v. Civill, 141 Seaman v. Harvey, 188, 299, 300, 3.4-). Seamans v. Barentson, 659 Seaton v. Davis, 139 Sebald v. Mulholland, 704 Seebeck, Matter of, 217 Selden v. Vermilya, 352, 354, 368, 403, 408, 468, 477, 482, 48s Seneca Nation v. Christie, 2, 46, 70, 80, 130 Sethlin v. Golding, 791 Seventy-third St. Building Co. v. Jencics, 698, 699 Seymour v. McKinstry, 757 Seymour v. Warren, 713 Seymour, Matter of, 400 Shand v. Handley, 725, 731 Shangle v. Hallock, 217 Shanks v. Dupont, 100, 102, 121 Shannon v. Pentz, 171, 264 Shannon v. Pickell, 524 Sharington v. Stratton, 669 Sharp V. Pratt, 534 Shattuck V. Lamb, 716 Shaw v. English, 243, 257, 311 Shaw V. Summers, 499 Sheary v. Adams, 630 Sheehan v. Hamilton, 646, 668 Sheets v. Selden's Lessee, y^ Sheldon v. Bliss, 583 Sheldon v. Edwards, 153 Sheldon v. Hoffnagle, 570 Sheldon v. Stryker, 784, 790, 792 Sheldon v. Wickham, 736 Shepherd v. McEvers, 425 Sheridan v. House, 211, 219, 231, 310 Sherman v. Engel, 625 Sherman v. Ludin, 610, 627, 628, 630 Sherman v. Sherman, 290 Sherman v. Skuse, 378, 400 Sherman v. Tucker, 400 Sherwood v. Phillips, 712 Shidloosky v. Gorman, 729 Shipman v. Rollins, 218, 257, 258, 293 Shively v. Bowlby, SS 64, 89, 90, 91, 92. 93. 94 Shneider v. Mali, 694, 760 Table of Cases. xlv Shoelkopf V. Coatsworth, 709 Shongo V. Miller, 129 Short V. Wilson, 417 Shotwell, Exr. v. Mott, 347, 348 Shrady v. Van Kirk, 392 Siedelbach v. Knaggs, 356 Siefke v. Siefke, 321, 392 Siegel V. Auger, 390 Siemon v. Schurck, 361, 364 Siglar V. Van Riper, 600 Simar v. Canaday, 564 Simers v. Saltus, 622 Simmons v. Burrell, 852 Simmons v. Taylor, 308, 505, 506 Simonson v. Falchee, 814, 817 Simpson v. French, 308, 506 Simpson v. Masson, 633 Sinclair v. Jackson, 379, S33 Sing Tuck v. U. S., 99 Sjr John Moline's Case, 769 Skinner v. Quinn, 389 Skinner, Matter of, 308, 506 Slattery v. Schwannecke, 758, 761 Slingerland v. International Con- tracting Co., 92, 95 Slocum V. English, 398 Smith V. A. D. Farmer Type F. Co., 520 Smith V. Allen, 852 Smith V. Balcom, 362, 363, 891 Smith V. Benson, 152, 153 Smith V. Bowen, 391, 395, 404, 425, 477, 481 Smith V. Boyd, 790, 791 Smith V. Campbell, 320 Smith V. Chesebrough, 385, 451, 452, 454 Smith V. Chesebrough, 242 Smith V. City of Brooklyn, 95 Smith V. City of Rochester, 51, 55, 57, 63, 64, 6s, 70, 80, 89, 90, 94 Smith V. Colson, 149 Smith V. Cowles, 336 Smith V. Devlin, 625, 656 Smith d. Dormer v. Parkhurst, 213 Smith V. Dorr's Adm., 874 Smith V. Edwards, 218, 223, 247, 266, 321, 380, 38s Smith V. Floyd, 405, 474, 510, 512, S19, 522, 526 Smith V. Gardner, 569 Smith V. Gertner, 324 Smith V. Havens Relief Fund So- ciety, 450, 453 Smith V. Kerr, 142, 626, 628 Smith V. Kissel, 654 Smith V. Kniskern, 588 Smith V. Lansing, 217, 851, 857, 873 Smith V. Littlefield, 152, 632 Smith V. Niver, 625 Smith V. Parsons, 320, 323 Smith V. Post, 728 Smith V. Reid, 724, 725, 729 Smith V. Rice, 675 Smith V. Rielly, 104, no, 114, 117 886 Smith V. Robertson, 884 Smith V. Scholtz, 299, 718 Smith V. Secor, 226, 231, 247, 250, 305, 327 Smith V. Smith, 654 Smith V. Smith, 217 Smith V. Smith, 563 Smith V. Smith, 103, 104, 114, 886 Smith V. Stewart, 608 Smith V. Terry, 501, 577 Smith V. Tim, 79a Smith V. Van Ostrand, 185 Smith, Matter of, 445, 453 Smith, Matter of, 588 Smyth V. Knickerbocker Life Ins. Co., 758 Snedeker v. Congdon, 108, 209, 245, 270 Snedeker v. Congdon, 378, 386, 418 Snedeker v. Warring, 153 Snider v. Snider, 285 Snow V. Daggett, 654, 658 Snyder, Matter of, 320, 321, 323, 326 Stoddard v. Whiting, 654, 658 Solley V. Westcott, 308, 309, 417, 505, 506 Sommer v. Sommer, 558 Sommers v. Contentin, 728 Sonn V. Heilberg, 706 Sonn V. Weissmann, 141 Soper V. Brown, 285 Southard v. Benner, 735, 736 Southard v. Pinckney, 726, 735 Spader v. Powers, 298, 299 Spalding v. Hallenbeck, 172 Sparrow v. Kingman, 21, 167, 429, 646, 649, 668, 673, 734 Spears, Matter of, 368, 389, 406 Spear, Matter of, 588 Speed v. St. Louis M. B. T. Co., 647 Spencer v. Hay Library Assn., 450, 451, 454 Spencer v. Richmond, 821 Spencer v. Spencer, 264 Spencer v. Spencer, 67s, 756 Spicer v. First Nat. Bank, 757 Spicer v. Waters, 730 Spies v. Boyd, 378, 401 Spies V. Spies, 577 Spindler v. Gibson, 490, 837 xlvi Table of Cases. Spitzer v. Spitzer, 245, 264, 383, 479 Sposato V. City of New York, 95 Spota V. Hayes, 654, 712 Sprague Nat. Bank v. Erie R. R. Co., 622 Springstein v. Schermerhorn, 142, 144 Staats V. Ten Eyck's Exrs., 697 Stagg V. Jackson, 842 Stall V. Wilbur, 841 Stamm v. Bostwick, 103, 114 Standen v. New Rochelle Water Co., 95 Stanley v. Colt, 170 Stanley v. Union Nat. Bank, 728, 729 Staples V. Hawes, 217, 242, 370, 382, 404, 478 Starbuck v. Starbuck, 563, 367, 577, 578 Starin v. Kelly, 724, 730 Starkey v. Kelly, 725 Starr v. Starr, 588 State Trust Co. v. Casino Co., 286 State Trust Co. v. Casino Co., 192, 752 Steadfast ex dem., etc. v. NicoU, 44, 45, 46, 231, 299, 304, 883 Stearns v. Gage, 730 Steefel v. Rothschild, 628, 629 Steele v. Fisher, 588 Steele v. Ward, 558, 564 Steers v. Brooklyn, 92 Stein V. Rice, 628, 629 Steinhardt v. Cunningham, 370, 373, 374, 389, 40s Steinway, Matter of, 367 Steinway v. Steinway, 371 Steinway v. Steinway, 243, 246, 332 Stelz V. Schreck, 334, 577 Stephens v. Ely, 153 Sterger v. Van Sicklen, 709 Sternfield v. Wilcox, 713 Stewart v. Ackley, 441 Stewart v. Aldrich, 702 Stewart v. Cripler, 227, 397, 562 Stewart v. Doughty, 139, 141, 601 Stewart v. Frost, 629 Stewart v. Keating, 524 Stewart v. McMartin, 401, 734 Stewart v. Phelps. 140 Stewart v. Russell, 115, 117, 887 Stewart v. Smith, 623 Stewart, Matter of, 357, 378, 404 Stewart, Matter of, 469, 550, 551 Stevens v. Hauser, 717 Stevens v. Melcher, 274 Stevens v. Reynolds, 144, 145, 174 Stevens, Matter of, zyj, 378 Stevenson Brewing Co. v. Iba, 757 Stevenson v. Lesley, 216, 275, 290, 38s, 386, 410, 411, 417 Stevenson, Matter of, 441, 444 Stickney, Matter of, 308 Stiefel V. Bertin, 726 Stilson, Matter of, 583 Stilwell V. Doughty, 613 Stilwell V. Kennedy, 186 Stilwell V. Melrose, 158, 161, 163, 164, 165, 168, 314 St. John V. Northrup, 875, 887 St. Louis V. Rutz, 96 Stoddard v. Rotton, 814, 821 Stohlin v. Golding, 563 Stoiber v. Stoiber, 245, 246, 250, 251, 2S7, 279, 383 Stokes V. Hyde, 496, 538, 539, 542 Stokes V. Weston, 216, 217, 223, 224 Stoltz V. Doehring, 874 Stoltz V. Tuska, 760 Story V. N. Y. El. R. R. Co., 55, 64 Story V. N. Y. El. R. R. Co., 706 Stover V. Eycleshimer, 311 Stowel V. Lord Zouch, 9 Stranaghan v. Youmans, 174 Strauss v. Bendheim, 389 Strauss v. Hamersley, 629 Strout, Matter of, 368 Street v. Gordon, 370 Streitwolf v. Streitwolf, 578 Striker v. Mott, 231, 299 Strobel v. Kerr Salt Co., 94, 95 Strong V. Wilkin, 489, 581 Strother v. Lucas, 59 Strough V. Wilder, 658, 661, 664, 759, 793 Strube v. Lentzback, 393, 521 Stuart v. City of Easton, 173, 177, Sturges, Matter of, 452 Sturtevant v. Sturtevant, 362, 657 Stuyvesant v. Hall, 762 Stuyvesant v. Neil, 524 Sullivan v. Ringler & Co., 638, 642 Sullivan Timber Co. v. City of Mo- bile, 91, 92 Sully V. Schmitt, 629 Sumner v. Skinner, 72S Surdam v. Cornell, 219, 222, 22.;, 301 Sutliflf V. Forgay, 116, 334 Sutphen v. Seebass, 629 Suydam v. Jackson, 628, 629, 630 Svenson v. Svenson, 576 Swaine v. Ferine, 140. 567. 581, 582 Swarthout v. Renier, ' 308, 505, 506, SU, S17, 833 Table of Cases. xlvii Sweeney v. Warren, 389, 393, 404, 464, 468, 471, 472, 474. 477. 478. 479, 519, 520, 521, SS2 Sweet V. Henry, 386 Sweet V. Schlieman, 371 Sweetland v. Buel, 333, 666, 756 Swinburne v. Swinburne, 362, 657 Sylvester v. Ralston, S06, 608 Syms V. Mayor, etc., 146, 264 Syracuse Savings Bank v. Holden, 350, 353, 356 T. Tabor v. Bunnell, 726 Tabor v. Willets, 389, 390, 393, 521 Taggard v. Roosevelt, 289, 641 Taggart v. Murray, 508, 511, 512, 514, 646 Taggart v. Rogers, 564, 570 Talamo v. Spitzmiller, 151, 609, 632, 712 Talbot V. Cruger, 153 Talcott V. Levy, 726, 729 Tallmadge v. East River Bank, 697, 705 Tallman v. Coffin, 701, 709, 713 Tallman v. Earle, 625 Tallman v. Murphy, 628, 629 Taltarum's Case, 35 Tarbell v. West, 661, 664, 754, 755. 763 Tate V. Neaky, 708 Tatum, Matter of, 842 Tatum, Matter of, 396 Tayloe v. Gould, 301, 382 Taylor v. Delancey, 87 Taylor v. Hoey, 729 Taylor v. Klein, 334 Taylor v. Millard, 330, 759 Taylor v. Morris, 533, 534 Taylor v. Porter, 134, 426 Taylor v. Post, 596 Teed v. Morton, 217 Teed v. Valentine, 725 Tefft V. Munson, 755 Temple v. Hawley, 259, 487, 581 Ten Eyck v. Craig, 718 Ten Eyck v. Witbeck, 719 Ten Eyck v. Witbeck, 759, 760, 762 I'errett v. Crombie, 565 Terry v. Dayton, 843, 845, 889, 890, 894 Terry v. Rector of St. Stephen s Church, 308, 505, 506 Terry v. Wiggins, 308, 506, 645, 668 Terwiliger v. Ontario & S. R. R. Co., 499 Thall v. Dreyfus, 418 Thatcher v. Candee, 444 Thayer v. Marsh, 676 Thayer v. Rock, 712 Thelluson v. Woodford, 42, 238, 319 Thebaud v. Schermerhorn, 417 The Bank for Savings v. Frank, 752, 757, 761, 814, 821 The Mayor v. Hart, 64 The People v. Keyser, 823 Thoesen & Brother, Matter of, 736 Thomas v. Dickinson, 713 Thomas v. Evens, 435 Thomas v. Nelson, 609, 712 Thomas v. Snyder, 546 Thomas v. Troy City Nat. Bank, iSs Thomas v. Wolford, 480, 506 Thompson v. Burhans, 716 Thompson v. Carmichael, 890 Thompson v. Carmichael's Exrs., 388 Thompson v. Cox, 610 Thompson's Exr. v. Norris, 450 Thompson Nat. Bank v. Corwine, 756 Thompson v. Poor, 712 Thompson v. Schenectady Ry. Co., 680 Thompson v. Simpson, 668 Thompson v. Vidal, 251, 252 Thompson, Matter of, 843, 870, 871 Thorn v. de Breteuil, 148, 318, 319, 320, 321 Thorn v. Mayer, 809 Thorne, Matter of, 852 Thorne, Matter of 265, 374 Thousand Island Steamboat Co. v. Visger, 94 Throckmorton, In re, 384 Thurman v. Cameron, 791, 793 Tienken, Matter of, 216, 218, 274, 411 Tiers v. Tiers, 266 Tilden v. Green, 40, 41, 198, 20a, 248, 257, 293, 347, 404, 405, 406, 450, 451, 474, 478, 479, 519, 521, 552 Tillotson V. Boyd, 708 Tilton V. Vail, 861 Timpson v. Mayor, 88 Tinkham v. Borst, 696 Titcomb v. Fonda, J. & G. R. R. Co.. 717 Title Guarantee & Trust Co. v. Weiher, 756, 757, 828 Titus V. Weeks, 322 Tobias v. Ketchum, 274, 370 Tobin V. Graf, 322, 323, 326 Tocci V. Powell, 628 Todd V. Eighmie, 759 Todd V. Nelson, 726 xlvi Table of Cases. Todd V. Union Dime Savings Insti- tution, 759 Toledo Liberal Shooting Co. v. Erie Shooting Co., 89 ToUes V. Wood, 400, 416 Tompkins v. Fonda, 401, 561, 590, 598, 717, 734 Tompkins v. Hunter, 729 Tompkins v. Verplanck, 216, 224, 226, 326, 332 Tompkins, Matter of, 274 Tomson v. Ward, 43 Tone V. Brace, 679 Toronto Trust Co. v. C. B. & Q. R. R. Co., 3S8 Torres v. Thompson, 653 Torrey v. Shaw, 846, 858, 859 Torrey v. Torrey, 334 Towle V. Remsen, 73, 161, 165, 16S, 168, 170, 171, 181, 195, 295, 313, 314, 561, 716, 718 lowler V. Towler, 391, 392, 403, 467, 468, 474, 477, 496, 519, 520 Town of Huntington v. Titus, 169 Town of Mentz v. Cook, 343, 367 Town of North Hempstead v. Greg- ory, 90 Town of Southampton v. Mecox Bay Oyster Co., 50, 54, 55, 72 Townsend v. Bumpus, 734 Townsend v. Morris, 698, 700 Townsend v. Townsend, 566, 567, . 585, 597 Townsend v. Townsend, 405, 521, 522 Townsend v. Van Buskirk, 874 Townsend v. Walley, 533 Townshend v. Frommer, 197, 216, 224, 30s, 346, 350, 351, 353, 354, 357. 378, 401, 403, 404, 469, 478, 480, 518 Tracy v. Frey, 874 Traphagen v. Burt, 361, 363, 654, 657, 714 Trask v. Sturges, 185, 390, 393 Trask v. Sturges, 479, 508, 521 Traver, Matter of, 165, 218, 222, 842 Traver, Matter of, 506 Travis, Matter of, 309 Treadwell v. Inslee, 760 Treadwell v. Sackett, 790 Treat v. Vose, 353 Trimm v. Marsh, 841 Trimm, Matter of, 853 Trolan v. Rogers, 681, 700 Troup V. Hurlbut, 760 Trowbridge v. Metcalf, 383, 478, 553, 842 Truesdell v. Bourke, 735 Trunkey v. Van Sant, 370, 371, 451, 452 Trustees of Amherst College v. Ritch, 358 Trustees v. Bowman, 833 Trustees of Baptist Church v. Bige- low, 714 Trustees v. Kirk, 92 Trustees of Brookhaven v. Strong, 53, 57, 58, 59, 60, 62, 70, 89, 90, 95 Trustees of Canandarqua Academy v. McKechnie, 784, 790, 792, 793, 802 Trustees of Columbia College v. Thacher, 171, 263, 706 Trustees of East Hampton v. Vail, 53, 72 Trustees, etc. v. Lynch, 173, 697, 703, 70s Trustees of Southampton v. Betts, 72 Trustees of Union College v. Ciry of N. Y., 165, 168, 170 Trustees of Union College v. Wheeler, 757, 761 Trustees of Village of Delhi v. Tone- man, 95 Tsoi Sims v. United States, 99, 121 Tuck v. Knapp, 351, 371 Tucker v. Tucker, 264, 374, 377, 381, 388, 391, 404, 485 Tulk V. Moxhay, 697 Tully V. Tully, 874 Turner v. Howard, 690, 705 Turner v. Mather, 265, 266, 384, 395 Tuthill, Matter of, 96 Tuttle V. Jackson, 760 Tweddle v. N. Y. Life Ins. & Trust ,. Co., 320 Tyler v. Heidorn, 174, 176, 177 V. Uihlein v. Matthews, 705, 707 UUman v. Cameron, 353, 357, 416, 505 Ulrich V. Ulrich, 569 Underhill v. Collins, 625 Underwood v. Curtis, 242, 266, 381, .385 Underwood v. Curtis. 381, 385, 553 Underwood v. SutclifTe, 361 Unglish v. Marvin, 609 Union Nat. Bank v. Warner, 725 United States v. Arredondo, 59 U. S. V. Bostwick, 628 U. S. V. Elm, 99 U. S. V. Gleason, 102 Table of Cases. xlix U. S. V. Gordon, loi U. S. V. Jue Wy, 99 United States v. Loughrey, 12, 164, 313, 370 U. S. V. Tueng Sam, 99, 100 United States v. Moline, 93 United States v. Pocheco, 92 U. S. V. Villato, 98 U. S. V. Wong Kim Ark, 100, 10 1 U. S. Trust Co. V. Chauncey, 546 U. S. Trust Co. V. Maxwell, 873 U. S. Trust Co. V. Maresi, 370, 385 U. S. Trust Co. V. Roche, 216, 425, 426 U. S. Trust Co. V. Soher, 322, 323, 327 U. S. Trust Co. V. Wheeler, 223, 23^ United States Trust Co., Matter of, 28s United States Trust Co., Matter of, 419 Union Dime Sav. Inst. v. Duryea, 762 Union Nat. Bank v. Leary, 713 Union Nat. Bank of Albany v. War- ner, 447 Upington v. Corrigan, 163, 164, 165;, 168, 170, 171, 175^ 180, 196, 311, 313, 314, S6i, 617, 707 Utica, etc., R. R. Co. v. Stewart, 774 V. Vail V. L. I. R. R. Co., 164, 195, 313, 707 Vail V. Vail, 380 Vail V. Vail, 319, 321, 323, 326 Vail V. Vail, 891 Valentine v. Healy, 333, 638 Valentine v. Hutchinson, 837 Valentine v. Lunt, 108 Valentine v. Wettherill, 842, 846, 847, 848, 8S9, 867, 877, 878 Van Alst v. Hunter, 387 Van Arsdale v. Buck, 609 Van Axte v. Fisher, 222, 227, 308, 506, 514, 522 Van Beck v. Thompson, 853 Van Beuren v. Dash, 865 Van Beuren v. Wotherspoon, 146 Van Boskerck v. Herrick, 518, 519 Van Cleaf v. Burns, 576, 577, 578 Van Cott V. Prentice, 408. 494, 497 Van Cortlandt v. Tozer, 750, 751, 764 Van Cortlandt v. Underhill, 146 Van Courtland v. Nevert, 103, 122, 232 Vanderheyden v. Crandall, 36, 107, 188, 311, 312. 313, 840 iv Vanderkampf v. Shelton, 752, 757 Vanderkarr v. Vanderkarr, 679 Vanderpoel v. Loew, 209, 229, 245 Van der Volgen v. Yates, 351, 363, 364 Vanderwiele v. Faylor, 96 Vanderzee v. Slingerland, 156, 217 Van Deusen v. Young, 139 Vandevort, Matter of, 555 Van Dyke v. Thayre, 565 Van Epps v. Clock, 738 Van Epps v. Van Epps, 416 Van Gelder v. Post, 565 Van Giesen v. Bridgford, 50, 55 Van Home v. Campbell, 24, 29, 40, 42, 159, 160, 161, 185, 189, 198, 248, 254, 2SS, 266, 283, 290, 297, 306, 307, 308, 505, 506, 507, 512 Van Keuren v. Corkins, 752, 759, 761, 828 Van Ness v. Gardiner, 22 Van Nostrand v. Marvin, 24, 220, 224, 243, 289, 290 Van Orden v. Van Orden, 588 Van Rensselaer v. Ball, 616, 617 Van Rensselaer v. Ball, 166, 1'75, 179, 180, 181; 313, 314, 707 Van Rensselaer v. Barringer, 181 Van Rensselaer v. Chadwick, 148, 149, 185 Van Rensselaer v. Dennison, 145, 146, 174, 177, 181, 619 Van Rensselaer v. Hayes, 12, 14, 53, 60, 63, 65, 68, 83, 106, 148, 149, 150, 173, 174,"^ 17s, 176, 179, 315 Van Rensselaer v. Jewett, 177 Van Rensselaer v. Jewett, 617 Van Rensselaer v. Jones, 612 Van Rensselaer v. Kearney, 188 Van Rensselaer's Heirs v. Penni- man, 625 Van Rensselaer v. Penniman, 142 Van Rensselaer v. Poucher, 108, 134, 188. 850 Van Rensselaer v. Read, 151, 164, 166, 172, 173, 17s, 177, 180, 181, 314. 31S, 316, 618, 619, 710, 840 Van Rensselaer v. Slingerland, 170, 180 Van Rensselaer v. Smith, 23, 44, 79, 17s, 176, 177 Van Rensselaer v. Snyder, 150, 180 Van Schoonhoven, Matter of, 446 Van Vechten v. Kealor, 677 Van Vechten v. Van Veghten, 235, 248, .388, 472, 478 Van Vleck, Matter of, 398 Van Wicklen v. Paulson, 708 Table of Cases. Van Winkle v. Constantine, 782 Van Winkle v. Constantine, 595 Van Woert v. Benedict, 546 Van Wyck v. Baker, 724 Van Wyck v. Richman, 417, 433 Van Wyck, In re, 44s, 447, 533 Varick v. Briggs, 758 Varick v. Jackson, 649 Vartie v. Underwood, 565, S7i, S72 Veeder v. Horshmann, 712, 738 Verdin v. Slocum, 353, 404 Vernam v. Smith, 607 Vernon v. Vernon, 264, 358, 370, 389, 404. 412. 588 Verplanck v. Sterry, 722, 725 Verplanck v. Wright, 618 Verschoyle v. Perkins, 60, 148, 176, 177, 179, 183, 184 Viele V. Judson, 757, 823 Viele, Matter of, 327, 374, 383, 384 Village of West Springs, 111. v. Col- lins, 701 Vincent v. Newhouse, 217 Voelckner v. Hudson, 600 Voight V. Meyer, 716 Von Hesse v. MacKaye, 494, 497 Voorhees v. Presbyterian Church, 186, 661, 793 Voorhis v. Brintnall, 577 Vorbeck v. Roe, 87, 759 Vosburgh v. Corn, 636 Vowers, Matter of, 183 Vrooman v. Shephard, 717 W. Wadhams v. Amer. Home Miss. So- ciety, 461, 488, 489, 583 Wadsworth v. Murray, 217, 223, 224, 225, 256, 257, 312 Wadsworth v. Wadsworth, 100, 103, 104, 121 Wadsworth, Matter of, 817, 823 Wager v. Wager, 185 Wagner, Matter of, 320 Wainwright v. Low, 99, 114, 117, 118, 401, 404 Wait V. Day, 364 Wait V. Wait, 577 Wait V. Wilson, 657 Wakeman v. Somerindyke, 362 Walker v. McNulty, 703, 704 Walker v. Schuyler, 565 Walker v. Sherman, 153 Walker, Matter of, 216 Walter v. Ham, 332 Walter v. Tompkins, 392, 393 Ward V. Crum, 334 Ward V. Hasbrouck, 654, 655, 712 Ward V. Isbill, 755, 762 Ward V. Met. Ry. Co., 759, 760 Ward V. Morris, 98 Ward V. Stanard, 472, 511, 535, 554, 647 Ward V. Terry, 174, 181, 182 Ward V. Ward, 358, 370 Ware v. Wisner, 101 Waring v. Waring, 505 Waring, Matter of the Petition of, 441 Warner v. Hitchins, 628 Warner v. Van Alstyne, 563, 571 Warner v. Winslow, 752, 821 Warren v. City of Gloversville, 89 Warren v. Cochrane, 625 Warren v. Leland, 87, 841 Warren v. Union Bank of Roches- ter, 435 Washbon v. Cope, 185, 216 Washbourne v. Downes, 244 Washburn v. Burnham, 767 Waterbury v. Head, 706 W. W. M. Co. V. Shannahan, 75 Waterman v. Webster, 499 Waters v. Stewart, S^, 841 Watkins v. Reynolds, 354 Watson V. Almirall, 627, 630 Watson V. Campbell, 785, 792 Watson V. Donelly, 113 Watson V. Mercer, 793 Watson, Matter of, 546 Watts, Matter of, 217 Weaver v. Edwards, 752, 756, 761, 823 Webb V. Russell, 708 Weber v. Rogers, 636 Webster v. Van Steenbergh, 758, 761, 762 Weed V. Stevenson, 820, 821 Weed V. Weed, 387 Weeks v. Cornwall, 374, 376, 389 Weightman v. Weightman, 576 Weinstein v. Weber, 472, 474, 504, ,,505, 512, 544, 546, 547, 598 Weis v. Mendelson, 625 Weisbrod v. Dembosky, 713 Welch, Matter of, 442 Welde v. Silliman, 73 Wellbrook v. Otten, 397 Weller v. Weller, 56-^ Wells V. Betts, 490, 837 Wells V. Seeley, 308, 480, 506, 842, 859, 871 Wells V. Wells, 385 Wendell v. The People, 46, 70, 80, 82, 135 Table of Cases. Wendell, Matter of, 506 Wendt V. Walsh, 353, 356, 357, 504 Werner v. Padula, 630 Westbrook v. Gleason, 757, 758, 761 Westcott V. Higgins, 219 Westcott, Matter of, 308, 506 West. Union Tel. Co. v. Manhattan Ry. Co., 702, 70s West. Union Tel. Co. v. Shepard, 186, 357, 3S8 Westervelt v. Gregg, 97 Westervelt v. The People, 752 Westfall V. Westfall, 821 Westlake v. De Graw, 610 Weston V. Goodrich, 218 Westphal v. City of New York, 95 Wetherow v. Lord, 334 Wetmore v. Bruce, 709 Wetmore v. Kissam, 107, 581 Wetmore v. Parker, 453 Wetmore v. Truslow, 371 Wetmore v. Wetmore, 400, 442 Wetmore, In re, 231 Wetyen v. Fick, 567 Weyman v. Weyman, 2ig Weyman's Exr. v. Ringold, 695, 704 Whalin v. White, 622 Wheaton v. Andress, 645 Wheeler v. Clutterbuck, 115, 844, 861, 86s, 877, 878 Wheeler v. Dunning, 169 Wheeler v. Hall, 712 Wheeler v. Reynolds, 362, 363, 6s3, 657, 70s Wheeler v. Spinola, 92 Whelan v. Whelan, 722, 725 Whiskon v. Cleyton, SiO Whitbeck v. Cook, 783 Whitby V. Mitchell, 292 White V. Collins Building, etc., Co., 706 White V. Douglass, 652, 6s7 White V. Hicks, 464, S44 White V. Howard, 412, S3S. 842 White V. Kane, 398 White V. Leslie, 7SS White V. Moore, 820 White V. Nassau Trust Co., 94 White V. Wagner, 499 White's Bank v. Farthing, 726 Whitlock V. Gould, 762 Whitlock V. Washburn, 531, S34 Whitmarsh v. Cutting, 141 Whitney v. Spencer, 170 Whitney v. State of N. Y., 167 Whittemore v. Woodlawn Cemetery, 168 Whyte V. Denike, 725 Widdicombe v. Rosenmiller, 96 Wieland v. Renner, 118 Wightman v. Schliefer, 584, s8s, S96, 597 Wilber v. Wiiber, 223, 226, 231, 245, 246, 247, 260, 262 Wilcox V. Drought, 666, 755, 762 Wilcox V. Murtha, 334 Wilcox V. Randall, 568 Wilcox, Re Estate of, ^^^ Wilder v. Ranney, S33, 534 Wilder v. Winne, 723 Wile V. Caufifman, 736 Wiles V. Peck, S97, 784 Wilhelm v. Wilkin, 759 Wilkes V. Lyon, IS7, 188, 201 Wilkin, Matter of, 463 Wilkinson v. Paddock, S63 Wilkinson v. Petit, 264, 618, 709 Will of Butterfield, Matter of, 479, 553 Willard v. Tillman, 617 Willcox V. Smith, 390 Willes V. Loomis, 333 Willets V. Willets, 521 Willey V. Greenfield, 717 Williams v. Birbeck, 751, 7S2, 755, 759, 760, 830 Williams v. Cox, 565 Williams v. Fitch, 358 Williams v. Jones, 208, 233, 290, 294, 297, 307. 3^0 Williams v. Kinney, 563 Williams v. Magee, (A\ Williams v. Mayor, 92 Williams v. Mitchell, 471 Williams v. Montgomery, 229, 245, 256, 380, 383, 730, 760 Williams v. Sheldon, S9. 73 Williams v. Sherman, 609 Williams v. Thorn, 400 Williams v. Williams, 578 Williams v. Williams, 62, 6s, 156. 241, 246, 248, 322, 326, 347, 348, 646 Williamson v. Banning, 809 Williamson v. Field, 163 Willis V. Astor, 146 Wilmurt v. McGrane, 618, 690, 702 Wilson V. Martin, 606 Wilson V. Quimby, 737 Wilson V. Taylor, 641 Wilson V. Troup, 462, 499 Wilson V. Van EpjSs, 505; 519, S26 ' Wilson V. White, 338, 339 Wilson V. Wilson, 285 Wilson V. Wilson,-' 447 Wiltsie V. Shaw, 398 Winchell v. Winch ell, 653 lii Table of Cases. Winne v. Winne, 853 Wiseman v. Lucksinger, 654 Wissel V. Ott, 634, 873 Withy V. Mumford, 700 Witt V. Mayor, etc., 633 Witthaus V. Shack, 558, 564, 585, 596, 597 Witty V. Mathews, 141, 627, 628 Woerz V. Rademacher, 362, 373, 374, 468, 540 Wolf V. Merritt, 641 Wolfe V. Howes, 170 Wolfe ex dem. R. Shelley v. Henry Shelley, 2nd, 298 Wofe V. Van Nostrand, 37, 40, 214 Wolfif, In re, 604 Wong Kim Ark, In re, 99, loi Wood V. Bach, 785 Wood V. Brown, 445 Wood V. Chapin, 328, 360, 658, 661, 662, 663, 664, 756, 760 Wood V. Gordon, 633 Wood V. Hubbard, 398 Wood V. Hubbell, 626 Wood V. Hunt, 724 Wood V. Jackson, 722, 725 Wood V. Mulock, 363, 714 Wood V. Rabe, 362, 363, 653, 657, 714 Wood V. Robinson, 361, 364 Wood V. Seely, 585, 596, 598 Wood V. Tayloe, 24, 243, 253, 289, 646 Wood V. Ward, 370 Wood V. Weiant, 80s Wood V. Wilcox, 610 Wood V. Wood, 416, 478 Wood V. Wood, 576, 583 Wood, Matter of, 396 Woodbridge v. Bockes, 427 Woodburn v. Chamberlin, 761 Woodbury, Matter of, 391 Woodgate v. Fleet, 231 Woodgate v. Fleet, 383, 385 Woodmeston v. Walker, 415 Woodruff V. Cook, 233, 266, 269 Woodruff V. Cook, 272, 278 Woodruff V. Oswego Starch Co., 146, 147 Woodward v. James, 321, 370, 371, 446, 454 Woodworth v. Genesee Paper Co., 95 Woodworth v. Paine, 169 Woodworth, Matter of, 842 Worrall v. Munn, 714 Wotton, Matter of, 427 Wright V. Douglass, 353, 358, 370, 404, 420, 760 Wright V. Holbrook, 677, 678 Wright V. Mayer, 165, 168, 169 Wright V. Mercein, 382, 383, 385 Wright V. Miller, 308, 408, 416, 506, 507 Wright V. Saddler, 102, 103, 113, 116, 121, 334 Wright V. Seaman, 728, 729 Wright V. Syracuse R. R. Co., 75 Wright V. Tallmadge, 473, 474, 488, 489, 5 14 Wright V. Trustees Meth. Church, 194, 480 Wright V. Wakefield, 660 Wright V. Weeks, 713 Wright V. Williams, 612 Wright V. Wright, 581 Wronkow v. Oakley, 604 Wurz V. Wurz, 334 Wyman v. Woodbury, 258 Wynne v. Haight, 627 Y. Yale V. Dederer, 597. 784 Yamashita, In re, 100 Yates V. Milwaukee, 90, 91 Yates V. Paddock, 600 Yates V. Yates, 242, 348, 381 York V. Washburn, 713 Young V. Dake, 289, 654, 656, 712 Young V. Guy, 754, 762 Young V. Heermans, 378, 401, 724, 725 Young V. Hicks, Matter of, 581, 583 Young V. Overbaugh, 653 Young, Matter of, 218 Youngs V. Carter, 564, 722 Youngs V. Youngs, 395 Young Women's Christian Home v. French, 233 Yutte V. Yutte, 666 Zarkowski v. Schroeder, 154, 386 Zarht, Matter of, 588, 591 Zartman v. Ditmars, 218 Zefita, Matter of (Covmtess de Rohan-Chabot), 466, 492 Zipp V. Barker, 706 Zorkowski v. Astor, 679 Zorntlein v. Bram, 334 Zule V. Zule, 613 THE REAL PROPERTY LAW INTRODUCTION. CHAPTER I. Historical Review. As the modern law of real property, among most English-speak- ing peoples, is composed of common as well as statute law, it neces- sarily subsists on very ancient foundations, for the common law relating to real property is, whether rightly or wrongly in fact, generally assumed to be the oldest portion of our jurisprudence. It is, therefore, conceived that a preliminary dissertation, treating of several features of the archaic law of land and inculcating the leading principles of conveyancing at different epochs, may form no irrelevant introduction to even the most modern of all statutes concerning real property. Statutes can never be read aright with- out reference to the antecedent state of the law. The law of the present is so inextricably blended with past institutions and with a historic terminology that we are forced, whether we will or not, constantly to recur to original sources. The present law of real property in the State of New York is but a statutory modification of the former English law relating to lands and estates therein. The history of limitations of estates in lands marks successive stages, mounting like steps of a stairway from an ancient foundation to the present modern and statutory structure. Mr. Butler^ in his day counted five stages from the feudal settlement; and to these we in this country have to add others, denoting the results of a transmigration of a people, the occupation of a new country, the establishment of a subordi- nate colonial government, a revolution in that government, the reforms consequent upon such a great organic change and, finally, statutory innovation. It is not necessary or even possible to advert to all these stages in detail, but simply to point them out and to 1 Charles Butler, Esq., of Lincoln's on Littleton and one of the leading Inn, the author of many of the notes conveyancing counsel in England, contained in the 13th edition of Coke [i] 2 The Real Property Law. suggest briefly the bearing which they have on the law of convey- ancing in our own day. The reader can then readily resort to the appropriate authorities, and where these are lacking, to original sources, if he may choose to pursue the inquiry further. Sources of English Law. All the English law of real property, at the time it was made the law of New York in the year 1664, was refer- able to three great causes: (I) The feudal settlement, giving rise to the common law; (II) Equity, founded upon the civil or canon law; (III) The national renaissance, or awakening, in the reign of King Henry VIII, which was attended by statutes of great signifi- cance, materially altering the common or archaic law of land. The rise of the original limitations of estates in lands will be found to correspond very closely to the epochs indicated. Subsequently to the period of the Reformation came a fourt h epoch, embracing the period of the Civil War in England, the abeyance of the monarchy and the express abolition of the feudal or military tenures. The restorati on of the monarchy was followed by great activity in the American colonies; colonial constitutions were then regularly for- mulated by the officers of the Crown. From these general instru- ments of colonial government, it is obvious that in legal theory all the land in the colonies became terra regis or Crown-land held by tenants of the Crown by the reformed socage tenure.^ Effect of American Revolution. When the American Revolution broke out the monarchy was at first put in abeyance in so far as the socage tenure was concerned, and the newly-organized State was then informally substituted for the Crown in all its prior legal rela- tions to land.^ When independence of the Crown was at last achieved, the theory that the State, or the people as a political cor- poration, had been substituted for the Crown in its old legal relations to land was formally acted on by the Legislature. Lands were next made allodial, and finally, by the Revised Statutes of 1830, the remnant of the rules of the common law which had feudalism for their base, were abrogated, and a uniform system of rules was applied to land. But as these new rules were more often mainly statutory extensions of principles having theretofore a limited appli- 2 In other words, the law of land s People v. Trinity Church, 22 N. Y. in the new country reflected the actual 44; Seneca Nation v. Christie, 126 id. condition of the English law on a 122. like subject. Introduction. 3 cation, they generally have a legal relation back to the origin of the particular principle. Thus it is impossible to break away from an endless chain of cause and effect in any unfinished system of juris- prudence. Common Law. Again, '" political societies " are in reality governed more by thousands of little institutions and rules of remote origin than by the prominent evidences of governmental authority. So it is with the law of land; it has its origin in the remote past, while only its final form is due to recent legislation. With this general explanation, let us refer more definitely to the causes which have been most potent in shaping the law of New York relative to land. Feudal System. It is generally conceded by law-writers that the law of land now used in England and the States derived from her Empire is inexplicable without reference to the law of feudal tenures.* Although feudalism has long ceased to have any power as a system, it still furnishes vis with many legal doctrines and much legal ter- minology. Unfortunately there is no very comprehensive and modern history, from a purely legal point of view, of feudalism. Mr. Butler's account of the sources of feudal law,^ used freely by Chancellor Kent, contains references to the best sources accessible in his day. The excellent generalizations of the lay historians who have since written on the subject, Coulanges, Sismondi, Guizot, Hal- lam, Robertson, Palgrave, Stubbs, Freeman, and the German scholars, Gneist, Waitz, Schmid, Sohm and Roth, are too abstract for the purposes of the practicing lawyer even when such generaliza- tions are not divergent or even irreconcilable. Thus the English- speaking lawyer still finds most that he requires for his investiga- tions in the old Anglo-juridical sources, such as Littleton, Selden, Madox, Coke, Spelman and Wright, for these authors write of the feudal law at the precise point where it touches modern law. Importance of Legal History. In this connection it is to be observed that the historical theories of mediaeval common lawyers cannot be disregarded by modern lawyers, for their theories are those which entered into the actual solution of legal doctrines. It is the fashion of the modern lay historian too often to deride the technical lawyer's * I Haynes on Conveyancing, 6 ; article on Feudalism, pth ed. ; Black. Kent, Com. Ill, 487 ; Bryce, The Holy Com. II, 44. Roman Empire, 3 ; Ency. Britannica, ^ Hone Juridicce Subsecivee, 7; et seq. 4 The Real Property Law. history,* without taking account of the fact just denoted. The judi- cial historian seeks only the consensus of lawyers, at some given date, on some institution pregnant with juridical results; whereas, the function of the lay historian is purely abstract, sociological or in- stitutional. For example, what lawyer will pretend that the history, contained in the Institutes of Gains, is to be compared for accuracy with the profound historical deductions of a Niebuhr or a Momm- sen. Yet, Gaius is of far greater value to the civilians, for it tells them not the eternal principle, but that concrete rule which men of law acted on at a given and fructifying date. So the history of a Coke or a Blackstone on tenures, while it may not precisely square with the profounder investigations and deductions of a Freeman or a Stubbs, has the advantage to lawyers of containing that very theory which actually led to judicial and statutory improvements in the law of tenures. In other words, the history of the lawyers has been ac- cepted by agents of government and acted on, while the history of the layman is yet to be treated as evidence only in the regular fashion and according to the rules of evidence. This suggestion will, per- haps, at least, serve to show the use actually made of the history contained in the commentaries of the older and the mediaeval com- mon lawyers, and that it is important in law, even if inaccurate, be- cause it presents the consensus of the older judg^an^ lawyers dur- ing a given epoch and on purely legal institutions.'' Such history, therefore, furnishes a guide whereby a statute may be safely construed. When it happens that the oracles of the common law, such as Coke and Blackstone, disagree upon some historical principle (and that this does happen occasionally is not to be ignored),^ the lawyer will quickly recognize that here there is a place for original inquiry, in all the light that the documents or the lay historians may shed upon it. Temporal Divisions of English Law. For the purposes of the common lawyer, the laws of England divide themselves into three great periods, the ancient, the middle, and the new ; thus corresponding to ^Cf., for example, Freeman, Nor- from other points of view by Tomlin man Conquest, V, 246, 248, 309, on in the Preface to his edition of " Lyt- Blackstone's history. tleton on Tenures." 7 The notion contained in this para- * Pollock & Maitland, Hist. En^. graph about the value of the writ- Law, I, 310. ings of legal historians, is discussed Introduction. 5 the jurisprudentia antiqua, media, et nova of the civilians. The ancient jurisprudence, in so far as it affects land, may be said to embrace the period beginning with the feudal settlement under the Conqueror and ending with the enforcement of uses by the chan- cellor in the reign of Henry V (1413-1422). The period of the middle jurisprudence will extend thence to the formal abolition of the miHtary or feudal tenures (1660) ; while the modern juris- prudence will embrace all the period between the restoration of the monarchy under Charles II and the present day. These periods are, however, always changing, for in a living jurisprudence the modern law rapidly merges into that which is obsolete ; while the obsolescent soon blends with the archaic. Who can doubt that, in the endless vista of time, even existing jurisprudence will form part of the jurisprudentia atitiqua of future generations? Yet how imperceptible are the actual gradations and demarcations between the periods ! How impossible it is in practice to ignore the most remote period, all schools of English-speaking commentators have admitted in writings which are now, from their excellence, a part of the great body of existing law. Feudal Tenures. Chancellor Kent began his Commentaries on the American Law of Real Property with an account of feudal tenures, because he deemed it impossible to explain the law of real property without some reference to a system which still furnishes in our own day, not only the definition of estates in land, but the very law regu- lating the quantity and the quality of dominion which we now enjoy over definite areas of land.* It is to be observed in this connection that Mr. Butler has pointed out that in England the law of feuds, or feudal estates, developed on lines of its own. He dwells on its isolation and its comparative independence of the foreign feudists.^" While this is generally true, there is reason to believe that it is some- what overstated and that many points in the English law of feuds or fiefs are identical with the rules prevailing in other feudal countries. Thus, as Mr. Butler himself admits, the " Grand Coutumier de Normandie " bears close relations to the feudal juris- prudence of England,^^ while the Libri Feudorum,^'^ though relating 9 Comm. Ill, 487-514. 11 Butler, Hora Juridics Subsecivce, 10 Introduction to 13th ed. of Coke 92. Cf., Stubbs, Const. Hist. Eng. I, on Litt. xvii. 437. 12 Vide infra, p. II. 6 The Real Property Law. to Lombardy, are at one, in many particulars, with the early feudal law of England. It is not often necessary in litigated cases to explore the most remote recesses of English jurisprudence, although not a few cases in our reports actually turn on the primitive common law, while a multitude of others examine with great profundity the origin of particular doctrines of the common law. In a large number of instances, as Mr. Justice Story has pointed out, so-called doctrines of the common law are, however, very modern.^* But the law of land constitutes an exception to Mr. Justice Story's observation, for its basic principles depend wholly on the local or Anglican law of feudal estates, as finally settled in the reign of King Henry 11.^* Without entering into the disputable and purely antiquarian learn- ing, which few persons (and the present writer is not one) have sufficient opportunity or knowledge to illustrate, let us confine our consideration briefly to those established principles of the English law of feuds which have a practical relation to the present law of real property in New York, and particularly to the department of conveyancing. Feudalism has been said, in substance, to be a complex word, not well adapted to the use of lawyers, who imply by it only that feature which relates to land tenure.*® As we well know, land ten- ure may exist without feudalism, or rather tenure may survive the social and political organization and the personal relations, together known as feudalism. It is unnecessary for the purposes of the conveyancer to consider the historic forces which led to feudalism, or to determine whether it was of Teutonic or of Roman origin, or whether, as is far more likely, it was not of composite origin.*® We may discard all this and begin with the period when the feudal establishment was firmly founded in England, and when most " feuds " or tenant-rights over lands had become estates of inherit- ance, whatever else they may have been in the earliest stages of the feudal law.*'^ When such an estate was inheritable by law, or by 1* Story, Eq. Juris. I, § 646. i'' It is much doubted whether Eng- 1* By the " Leges Henrici II." Jish_ feuds, or feudal estates, wei^^ot 15 Pollock & Maitland, Hist. Eng. always granted to the donee and " his Law, I, 43, citing Waitz. heirs." Spence, Eq. Juris. I, 44, 46; 16 See preface to Stubbs' Select Pollock & Maitland, Hist. Eng. Law, Charters, 14; Spence, Eq. Juris. I, I, 44, 213; Kent, Comm. HI, 494, 495. chaps. VI to X; Freeman, Norman 496; Goodeve, Real Prop. (4th ed.) Conquest, I, 62. 34. Introduction. 7 the form of the gift, the question alluded to by Glanvill^* must natu- rally have arisen : " Did it belong to the donee alone, or to the donee and the heir presumptive, conjointly? " An objection founded on this question is said to have been first interposed to the aliena- I tion of the feud, or tenement, by the ancestor alone.^^ A conse- quence of this subsequent legal unity of ancestor and heir is shown by the old maxim, " iilius est pars patris," quoted by Sugden in his notes to Gilbert on Uses, and taken from a case in the Year Books.^" It has been already suggested that the jurisprudentia antiqua of England may be said to extend to the reign of Henry V (1413- 1422). This reign is chosen by the present writer as a terminus ad quern, or boundary of the old law, because then it was that the lord chancellor . first gave a judicial remedy to the cestui que use, and through this triumph of uses the nature of the legal, or " feudal," or common-law estate was indirectly subverted. Prior, indeed very long prior, to this reign, an estate in lands had by the laws of England come to possess the following characteristic: it was held, mediately or immediately of the king, by the bond \ recognized in law as tenure. Either the king, or some chief lord holding of the king, was the lord of every estate in England. Tenures. Tenure is in Latin, " tenor," and is the same as " tenor investiturae," which implies the terms of the feudal donation. But English jurists use the term in a larger sense, to denote the feudal relation.^^ Tenure at common law may be said to fall into three general divisions or classes : (I) Chivalry; (II) Socage, and (III) Frankalmoigne.^^ Each class comprised several sub-kinds or species, which it is quite unnecessary for us to consider. They are very familiar through works of authority.^ The lord of an estate holden by tenure in chivalry possessed a seigniory, the nature of which is sufficiently denoted by the feudal rights of homage, fealty, escheats, forfeitures, reliefs, primer seisins, aids, wardship and marriage, all described in the classic pages of Blackstone, and by many other i*Lib. vii, c. I. 22 No. I and No. II were lay ten- 19 Dalrymple on Feudal Property, ures ; No. Ill a spiritual tenure. 94, 95, 96 (3d ed. Lond. 1758).' 2s Madox, Baronia Anglicana; Pol- ^oSugden's Gilbert (3d ed.), 150; 4 lock' & Maitland, I, 207-389; Challis, Hen. VI, 19b, pi. 6. 8, 15. The precise time when this 21 Vide Tomlin's Lyttleton, note a, classification became wholly compre- p. I. hensive is uncertain. It was cer- tainly accurate in Littleton's day. 8 The Real Property Law. writers on the law of real property.^ The lord of a fee, or estate, holden by tenure in socage, possessed a seigniory of a non-mili- tary nature; in other words, a seigniory of a less highly feudal- ized character.^^ Many incidents of socage tenure are undoubtedly of pre-Norman origin. The essential characteristic of socage tenure is that the tenant holds by certain services for all manner of services, so that the service be not knight-service.^^ Tenure by frankalmoigne, or free alms,^^ as it never existed in this country, need not be here considered.^ The American lawyer rarely has to deal with the tenure by frankalmoigne, except in connection with his reading of very old English cases, bearing on the law of charities.^® The obligations of a tenant by either of the lay tenures indi- cated, of course, corresponded with the rights of the lord. The na- ture of the estate of the tenants, during the long period mentioned is, on the other hand, sufificiently denoted by their rights to seisin or possession, and to legal protection of such possession in the estab- lished courts of the realm. But the principal rights connected with the tenant's estate are related to the power of alienation, and to a succession by his heirs. The nature of these rights are the chief subject of the lawyer's inquiry at the present day. It will suffice to point out here that when both rights were firmly established, estates in lands had already attained a form and a substance in the common law very important to modern jurisprudence. Thence- forth the struggle, both political and legal, could only be one to augment the rights of the tenant at the expense of the feudal seigniory. It is a curious fact in this connection that in the march of time, not only did the once inferior tenure (for socage tenure was usually the tenure of persons of the lower rank), supplant the 24 Cf., the legal historians, Reeves, existed in the West Indies, the Mari- Crabb, Digby, Pollock & Maitland; time Provinces, or in Canada. The and also the original sources, Glan- Crown could create it undoubtedly, vill and Bracton. 28 ggg g. discussion of tenure of 25 The socage tenant was free from frankalmoigne in People v. Van Rens- liability to render military service, and selaer, 9 N. Y. 334, 335 ; Jackson ex^ from the incidents of wardship and dem., etc., v. Sample, i Johns. Cas. marriage. 231, 236. 26 Litt., § 117. 29 jt may, perhaps, be permissible 2T Although saved by stat. 12 Car. for me, in this connection only, to II, chap. 24, I have never met an in- refer to my Essay on Charitable Uses, stance of this tenure in the province pp. 17-19 (N. Y. 1896). of New York. It may have, however. Introduction. 9 higher forms, but that the redress of tenants of leasehold estates (which, as estates, are long posterior to the feudal settlement), became in this country the norm or pattern of all legal redress con- nected with the wrongful possession of land."" Glanvill and Bracton. The primary authorities upon the law of es- tates in England, during the period embraced in the jiirisprudentia antiqua, are the Justiciar, Glanviil, and the commentator, Bracjoa,. The ages of these writers have recently received much illumination from the great work of the learned Professors, Maitland and Pollock.*^ Glanvill has the distinction of being the first writer upon the subject oftBfe feudal jurisprudence of England,*^ having written in the reign of Henry 11,^^ or only a century after the Conquest. But as his treatise deals mainly with rerriedies and practice ques- tions and only obliquely with the law of estates,^* it is now much less cited in legal controversies than the commentaries of Bracton, who wrote in the reign of Henry HI. (1216-1272).^^ Bracton deals much more extensively and in detail with the laws and customs of England. His work has been called " the crown and flower of English mediaeval jurisprudence."^® No one who will take the trouble to consult the text of Glanvill or Bracton with attention can fail to see the bearing which it has upon the modern jurisprudence of England and of this country. But as Glanvill's treatise owes little to the Roman law, of which Bracton is textually full, he is higher evidence than Bracton as far as his text goes, although the text of neither author is now entitled to be regarded as authority in a court of law, unless supported by decisions.^^ Fortunately decisions 30 yide infra, this Introduction. 35 The reader will find in the Publi- 31 See also Bracton's Note Book, cations of the Selden Society, Vol- Maitland: and " History of English ume 8, an interesting comparison of Law before the time of Edward I." the texts of Azo and Bracton. 32 Tractatus de legibus et consuetu- ^6 Pollock & Maitland, Hist. Eng. dinibus AnglicE. Law, I, 185. 33 Hist. Eng. Law, Pollock & Mait- 37 Stowel v. Lord Zouch, i Plow, land, I, 146; cf. 8 Reports, Coke's 353; Blundell v. Catterall, 5 B. & A. Preface, and Preface to Beame's 268. I have seen Bracton quoted in Translation of " Glanville,'' p. xvii. the New York Reports without refer- 3* Glanvill is much used by HalLim ence to this distinction and, therefore, in his Essays on the Feudal System, note it. and also by Freeman and invariably with fine results. 10 The Real Property Law. are not lacking within a brief space after the epoch of these authors. The Year Books begin thirteen years before the Statute De Doms, or in 1272 (reign of Edward I).^ Having now briefly indicated the primary authorities concerned with the ancient, or the common- law, jurisprudence of England, we are prepared to pass to the further consideration of those features of estates in lands which proved permanent elements in English and in Anglo-American law. English Feudalism. The supremacy of the Crown, in respect of all landed estates, is the distinguishing mark of English feudalism. It undoubtedly dates from the year 1086 and the meeting on the plains of Salisbury, when it was enacted that all men, whether ten- ants of the Crown or not, should take the oath of fealty to the king.^ This supremacy of the Crown of England accounts for the doctrine of the common law " that all the land in England was either in the hand of the king himself or held of him by his tenants in capite."'"' By a natural extension, this doctrine was applied to the colonies of England,*^ including the province of New York.*^ Development of Power of Alienation. The essential right of a tenant of an estate in lands, during the first period of English jurisprudence, has been already stated to be related to the power of alienation.** Let us, then, briefly refer to the growth of the tenants' power of alienation. The precise starting point of this power is said to be in dispute,** Coke maintaining that " the liberty and power, originally vast, was gradually circumscribed ; "** whereas Blackstone postu- lates the " original inalienability " of the fief or feudal estate.** Without entering into the merits of the alleged controversy between 38 Chancellor Kent says they begin ** Mitchel v. United States, 9 Pet. in the reign of Edward II (vide 748; Martin v. Waddell, 16 id. at p. Comm. I, p. 480) ; but he never saw 426. the earlier books, only lately accessi- *2 Jackson ex dem., etc., v. Ingra- ble in this country through the pub- ham, 4 Johns. 163, 182; People v. lications of the Rolls Series and the Livingston, 8 Barb. 276; People v. publications of Horwood and Pike. Clarke, 10 id. 120, 141 ; People v. There are occasional references to the Rector, etc.. Trinity Church, 22 N. Y. * Year Books in the New York Re- 44, 46. ports; e. g., 9 N. Y. 334; 16 Johns. *^ Supra, p. 8. 384, 393. 40s; 8s App. Div. 258. ■"Pollock & Maitland, I, 310; sed 39 Freeman, Norman Conquest, IV, cf. Butler Intd. to 13th ed. Co. Litt. 472; Glanvill, Lib. ix, c. 2; cf. Stubbs, xviii. Const. Hist. Eng. I, 266, 267. *5 Co. Litt. 43a. *o Challis, 4; Black. Comm. II, 59. *« Comm. II, 71, 72. Introduction 11 the oracles of our law, it may oe suggested that the historical theory- adopted by Cruise in his work on Fines and Recoveries, is entitled to attention. He states, in substance, that immediately after the Conquest, it was the Norman policy to render feudal tenements inalienable, and that the feudal doctrine on non-alienation was very strictly enforced. But when the Norman power and dynasty was firmly established, it was no longer good policy for the Crown to contribute to the feudal power of the great nobility, and that then a Crown policy, favorable to tenant alienation, set in.*'' Notwith- standing the discussion of this historical question in many adjudi- cated cases in this country, it may be pointed out that subsequent to the Conquest, and prior to the year 121 7, there is little exact evi- dence concerning the precise extent ofthe tenant-right of alienation. What there is, is largely statutory. Magna Chart a of 121 7 only provided, in substance, that no man should sell more of his land than that the residue might be sufficient to answer the services due to the lord of the fee.*® This law obviously recognizes the tenants' power of alienation, to some extent, and also that feudal conse- quence of a partial alienation which is known as sub-infeudation ; a system of alienation wherein the last grantor stands as mesne lord to his vendee,*® and also as tenant to his old feudal superior, the bond being theoretically unbroken, although the remedies of the chief lord, dominus capitalis, may be purely real or in rem — a very important factor in the development of the law of feudal property. It was stated that the accepted legal history of the tenants' original right to alienate their feudal estates in England is not altogether satisfactory. The evidence is at best extremely meagre, and most legal historians have been content with a reference to a passage in Coke's Second Institute,^" or with passing generalities derived from the Libri Feudorum^^ which have no precise reference to English feuds. The best evidence attainable is inferential and largely de- rived from the text of the Statutes De Donis and Quia Emptores.^' ^"^ Cruise, Fines & Recoveries, II, 3 5i Printed at the end of vol. III. (3d ed., Dublin, A. D. 1787). Corpus Juris Civilis, ed. Fratrum *^ Magna Charta (ed. 1217), ch. 39. Kriegeliorum. This act is given in extenso in Coke's 52 The great work of the Profes- 2d Inst. 1-78. sors. Pollock and Maitland, does not *9 Called tenant in demesne. extend to the passage of the Statute 50 2d Inst. 65-67. Quia Emptores, 1290. They speak 'J 12 The Real Property Law. Even the scientific historians, such as Stubbs and Freeman, shed httle light on the early exercise of this right or power, while the legal historians until recently only buttress each other with a system of cross-references to Coke and each other which would be amusing were the subject of less interest to the law of property. It would be highly presumptuous here to attempt to unravel a problem so dependent on profound research and the most exalted scholarship. Yet, with this explanation, certain obvious inferences may be tolerated in view of their reference to the existing and modern authorities, and in view also of the importance sometimes attrib- uted by the courts of New York to the common law of England prior to the Statutes De Bonis and Quia emptores terranim.^^ If we start with the provision of the 1217 edition of Magna Charta already noticed,^* and assume a natural tendency on the part of the feudal lords to insist on conditions which must have been implied or expressed at the origin of their tenants' estates — a position quite conceivable in view of the known reciprocal feudal obligations of the lord to defend and warrant the tenants' possessions^ — we are at least prepared in good company to conjecture the nature of some struggle which must have led to the Statutes De Donis and Quia Emptores. That there were before these statutes conditions con- nected with the creation of the tenants' rights over land cannot be doubted. The earliest charters extant in England are full of con- ditions^® which are known to be the remote parents of uses, trusts and covenants running with the land as well as of those rights at a later day known as " common-law conditions."^'^ It was the diverse nature of the original donations of land sub conditione which no doubt ultimately led to a classification of fees or estates. But in the days of Glanvill and Bracton fees had not been subjected to classifi- with much reserve on the subject of Anglicum Aevi Saxonici, passim, et alienation before 1290. What they do Sharon, Turner, Hist. Anglo-Saxons, say is a great advance of their prede- II, appendix IV, "Anglo-Saxon Land- cessors. ed Property;" Statute De Donis, 53 Vide, e. g., Anderson v. Jackson, cap. i. 16 Johns. 382, 404, 42s ; People v. 57 gee modern instances of con- Van Rensselaer, 9 N. Y. 291, 334; fusion between trusts and conditions Van Rensselaer v. Hays, 19 id. 68, 72. subsequent. Birdsall v. Grant, 37 ^* Supra, p. II. App. Div. 348; United States v. 55 Glanvill, L. ix, c. iv. Loughrey, 172 U. S. 206, 221. 56 yide Thorpe, Diplomatarium Introduction. 13 cation.^® All tenements were simply free or non-free, and this ^ classification was wholly connected with the status of the tenant, rather than with the nature of his estate. No precise deductions concerning the extent of the earliest tenant-right of alienation can, however, be drawn without a resort to some hypothetical definition of the earliest normal type of feud or fee. It is common, though far from authorized, to assume that Littleton's definition of an English fee simple, feuditm simpler, although made four centuries later, embraced the most extensive tenant-right known before the Stat- ute De Donis, and then to explain that statute by a desire on the part of tenants to acquire a fee of the most liberal character. Such are the shifts of even an exact science, in the absence of the desired evidence. The definition of Littleton, unquestionably true in his day, thus enables the legal historian to assume with Coke that a fee simple originally conferred certain power of alienation and the right of succession ah intestato, knd that out of this fee simple came all other estates known to the later common law. This method of writing a history of tenant-right is, of course, satisfactory only in so far as it is sustained by contemporary evidence. It is apt to be most misleading history where it is wholly inferential. If the lords insisted upon the fulfillment of conditions contained in feudal donations of land, and particularly on that one providing that where land was granted to a man and the heirs of his body, j or heirs by such an one his wife, it should revert to the feudal I donor, in case the heirs of the donee failed, it would be also natural 1 to assume that the tenants resisted the claim. It is always assumed by law writers, despite the later maxim, nemo est haeres viventis, that a feudal donation to A. and the heirs of his body was originally \f treated as one on condition, and that birth of issue fulfilled the con- dition, and thenceforth that the tenants' fee was free of all conditions, or, in other words, feudum simplex^^ The best evidence of the existence of this state of things prior to 1285 is the first chapter of the Statute De Donis, which Lord Coke treated as conclusive. The professors. Pollock and Maitland, marshal other documentary evidence, although precisely at the most interesting point of the in- quiry — the action of the judges in interpreting such conditions favorably to the tenant — there appears to be no definite reference 58 Glanvill, L. ix, c. ii ; Bracton, f. 59 And see Anderson v. Jackson, 16 1/ 207. Johns. 382, 425. 14 The Real Property Law. to the authorities.^" Thus, the lawyer of to-day must still adhere for his authority to the recital of the Statute De Bonis, and in so doing he will possess the undoubted advantage of being in the com- pany of Coke and Blackstone. The statute of Westminster 2d, cap. I, commonly called the " Statrrt g Dp J^ nmr"^^ was passed in 128^, and obviously for the pur- pose of enforcing conditions contained in allotments or grants of territory, and thus enabling the lords of the land to profit by the reversion or escheats on the failure of the right heirs of the tenant. Its ultimate eifect was to raise a class of estates intermediate between a fee simple and an estate for life, called an " estate tail," which as Littleton says was wholly by force of this statute."^ The effect of this statute upon alienation was for a time, or until the year 1472,*^ to circumscribe the power of tenants in tail to alienate their tene- ments. It had no relation to those estates which were without con- ditions, now called fees simple. The next statute affecting the tenant's power of alienation was passed five years later, or in 1 290, and was directed to the practice of alienating lands by the process called sub-infeudation. This statute of Westminster 3d,** called, " Quia emptores terrarum," from, the three first words of the statute, was passed in the interest of the feudal superiors, as by sub-infeudation they in some instances were deprived of the fruits of feudal tenure."^ The statute provides that it shall be lawful to every freeman to sell at his own pleasure lands or part of them so that the feoffee shall hold the same lands or tenements of the chief lord of the fee.** This enactment gave the coup de grace in England to alienations by the process called sub-infeudation. Henceforth the right of free tenants (not being tenants in capite of the Crown) to alienate their tenements is clear. This statute has been thought to have had no reference to the Kino^'s tenants (tenants in capite), who were, however, specially cabled by the statute de praerogativa regis,^'' now called apocryphal.*® The **Hist. Eng. Law, 11, 17, 18. and Van Rensselaer v. Hays, 19 N. Y.)/ *i 2d Inst. 68, 72. 62 § 13. 66 Coke's 2d Inst. 500. 63 The year of Taltarura's case, en- 67 jy Edw, II, cap 6 ; Black. Comra. abling alienation by tenants in tail. II, 289; Lewis, Perpetuity, 14; Peo- 6* 18 Edw. I. pie V. Vnn Rensselner. 9 N. Y 20T. \/ 65 See the text of the statute itself 68 PoIlock & Maitland, Hist, of Eng. Law, I, 316. Introduction. 15 Statute Quia emptores certainly had no reference to those who held by unfree tenure, or who did not possess the status of free men at the time of its passage or adoption. Growth of Estates in Lands. From the year 1290, when the Statute Quia emptores was enacted, until the reign~oT King He nry V III, there was no great statutory change in the legal relation of thelord of the fee and the tenant, for during that whole period every oc- cupier's possession of land was only a tenancy; the King being the sole allodial proprietor. In view of this fact, the nature of estates in land by the law of England may be said to have assumed definite form and shape in the first period, or that one prior to the judicial enforcement of uses in the days of Henry V. But in so long a period of time as the four centuries prior to King Henry V, the growth of legal conceptions was certainly not stationary. A strictly feudal estate under the Norman dynasty (1066-1154) developed into an estate less highly feudalized under the Plantagenets (i 154-1399). Yet in looking back on t^ie entire period from so great a distance of time, it is not inaccurate to group the widely different days of both Glanvill and Bracton, and to include even the time of which Littleton wrote, for the system of tenures treated by him extended back to the feudal settlement, although in Littleton's own day feudalism was, no doubt, in a declining stage. In legal theory it remained dominant, but in practice it was being subverted without being formally abrogated. The time when Littleton was writing his great work on Tenures has long been regarded as the proper point to describe as a whole the development which estates in lands had then attained to in the law of England. We are by this course enabled to add to the treatises of Glanvill and Bracton the authority of the Yea r Books ,^ and to profit by the commentaries of Ljttjfitiaj, which may be said to crown the completed edifice of Anglican feudalism just as Glanvill and Bracton serve to mark the earlier stages of the same system. ** The official reports of cases from his library the very same Abridge- the reign of Henry III to the reign of ments used by Supreme-Court Justice Henry VIH. At a later day the William Smith, before our Independ- various Abridgements of the Year ence, and afterwards by Mr. Justice Books by Statham, Fitz Herbert, and Morgan Lewis, the predecessor of Brooke answered most practical pur- Kent in the Supreme Court of New poses. The writer now possesses in York. 16 The Real Property Law. Although Littleton's work was probably not published until later, it was undoubtedly written in the reign of Ed ward IV,™ and is, therefore, entitled to be regarded as indicating the "state of the common law in the reigns immediately preceding, including that of King Henry V, when uses were first regularly recognized by an established court of the realm. Until a very recent day Littleton's was the first treatise concerning real estates given to a student of the common law.'^^ Littleton is still a work of the highest au- thority in the courts of Ne w Yor k.'^^ Treated as a merely historical document, it is entitled to precedence in an orderly perusal of author- ities bearing on the law of real property. While considering briefly the nature of a tenant's estate of free- hold, according to the more ancient jurisprudence of England, it is 'unnecessary to note in detail slight changes and distinctions em- braced in so long a period. We may best confine our attention to a summary of a freeholder's rights about the year 1400, over lands held by the socage tenure — the only common-law tenure ever known in practice in New York. It will be unnecessary, for the same reason, to pay any attention to the peculiar or different rules of law relating to tenure by chivalry and particularly by that species of it known as knight-service ; for the military tenures had been all abolished in England prior to the English dominion over New York,''^ and, therefore, never became connected with our law of es- tates in lands. Although, as before indicated, the legal conception of a feodum simplex, or fee simple estate in lands, does not in all points coin- cide with the conceptions of the lay historian, such a fee may be said to denote, by the ancient or feudal jurisprudence of England, the largest collection of rights possessed by any feudal tenant of lands. By law a fee simple then passed to the heir at law free from any qualification arising out of the terms of the gift. Tenants ™A. D., 1461,^ ^3. See Mr. Tom- by Mr. Tomlin, which is very con- lin's learnea note on this subject in densea" and precise in the notes, his edition of " Lyttieton." while preserving the law French of ■^1 The common edition of Littleton Littleton himself. Both editions are is, of course, Coke's translation, with very commonly in lawyers' libraries, his notes and those of the distin- and need only be mentioned, guished scholiasts, Mr. Hargrave and ^2 £ g^ 5 jj y. 493 ; 19 id. 76 ; 26/ Mr. Butler. But one equally accept- id. 576. ^ able to most persons is the edition ^3 12 Car. II, chap. 24, et vide infra. Introduction. 17 in fee simple after the year 1290 (Statute Quia Emptores) had power to alienate the estate. Thus, in legal theory, a feud or fee of this character came ultimately to furnish to lawyers the normal type of estates in lands, notwithstanding the fact that long before the Statute De Bonis conditions were frequently coupled with gifts of feuds of inheritance.''* After that statute enforcing the con- ditions of the gift, arose the class of fees, known as " fees tail," which Littleton says were wholly by force of that statute. In . early feudal times the subordinate landholder, even of a pure feud \ {feodum simplex, or fee simple) lost the more ancient power of tes- ' tamentation. The feudal burdens of tenure and the loss of a tes- tamentary power are the main characteristics of a purely feudal estate in lands. This loss of the power of willing lands was a feudal innovation, for by the pre-Norman law devises, introduced by the clergy, were in common use.''* It was not, however, consistent with the principles of Norman feudality that the subordinate land- holder's testamentary power should continue to exist. It was cer- tainly calculated to embarrass the claims of feudal superiors ; thus it happened that the so-called common law of England did not perm it devises of lands.'^^ D owe r, or posthumous provision for the wife of tenant in fee simple, is recognized as early as Magna ChartaT' So when tenant in fee simple came to die the estate devolved on the heir after the reign of Henry III (1216-1272),''* very much accord- ing to the principles of descent, prevailing down to the present century.''^ Primogeniture, said to be of Norman origin*" (but probably peculiar to military tenures ),*''^ finally triumphed as the common-law rule,*^ although |he more ancient rule of partible in- heritances survived by particular custom in many places.*^ Thus we perceive that prior to the reign of Henry V (A. D. 1413-1422) I "^^ Litt., § 13 ; et cf Bracton passim ''^ Vide a most interesting discourse on Conditional Gifts. on the Law of Descent : Pollock & '^^ This well-established fact is Maitland, Hist. Eng. Law, II, 257. shown by the great number of Saxon ™ Changed in New York in I782.,_ wills extant. See Thorpe, Diploma- Art. IX, The Real Prop. Law, infra, tarium Anglicum Aevi Saxonici, *•> Sandys, Hist, of Gavelkind, 238. passim; Freeman, Norman Conquest, si Pollock & Maitland, Hist. Eng. I, 20. Law, II, 265, seq. ■^6 Powell, Devises, I, 4 ; In the Mat- 82 Reeves, Hist. Eng. Law, I, 254, - ter of Will of Fox, 52 N. Y. S30, at 255. p. 533. 83 Sandys, History of Gavelkind, T' Ed. 1215, cap. vii. passim. 2 18 The Real Property Law. an estate in lands had come to mean property of the tenant, out of which provision could be made for the wife, and that, subject to the wife's provision, such estate descended to the heir of the tenant. But the inheritable estate was subject to the many feudal burdens already mentioned.^* These feudal burdens are the distinguishing characteristics of the estate of the period, as contrasted with the estate of a later day. Classification of Fees. Scientific classification is not a characteristic of the early law writers of England. Even Littleton takes no note of any division of fees other than that into " fees simple " and " fees tail,"*^ which last he states are wholly by force of the statute of Westminster 2d {De Bonis), and that before that statute even fees tail were but " fees simple conditional."^* Littleton ignores even the ancient fee known as " f^efarm," " feodi iirma," treating of it only indirectly or from the point of view of the landlord, under " rents,"^^ notwithstanding the fact that fees farm were very an- cient, being mentioned in Magna Charta.^^ It is, however, to be remembered that in Littleton's day the " feudal system " of England had been greatly relaxed, although in legal theory it still remained the basis of the land law of England. Indeed, Littleton's own treatise is a departure from the purely feudal law. In parts it is strangely modern and much of it remains law at the present day. Littleton seems to have been influenced by some spirit of modernity, for in his treatise he practically ignores any classification based upon the characteristics of feuds or fees, and attempts to classify the rights of certain tenants over lands, under " estates upon condition ; " thus abandoning fees as a basis of classification and resorting to the more modern " estates."^® It is not curious that in this attempt he nearly loses sight of that very ancient class of fees known as " fees farm," although such fees possessed the inheritable characteristic of fees simple, in passing to the farmers', or grantees', heirs at law."" The custom in England of reserving rent on certain grants of lands long antedates the Norman Conquest. When this custom was perpetuated by the Normans certain feuds in perpetuity were s* Supra, p. 7. 89 Liber III, c. 5, §§ 325, 384. ^ §§ I, 13. ^* Mr. Cruise, in his book on Fines, 88 Litt., § 13. notices that leases to farmers resem- 8T § 217. ble sub-infeudations, II, 17. 88 Ed. of I2IS. Introduction. 19 known as " feodi firma" or " fee farm," probably because the tenant was a " farmer " or one who paid rent. Thus in addition to Little- ton's " feessimple " and " fees tail," we may add a third class of feuds or estates originally known as " fees farm." Classifications of fees,^^ as it will be remembered, then are not ancient. Littleton confines his treatise to descriptions of the nature of tenancies, and his work is the final one on tenures as they stood after the Wars of the Roses, when they had been already much modified by the rise of the equitable estates called " uses." But there is no attempt at a classification of fees by Littleton. Coke's commentary on Littleton does map out a classification of fees as follows: (i) Fee simple absolute; (2) fee simple conditional, and / (3) fee simple qualified.^ Mr. Preston, in his work on Estates, L/ proceeded to evolve a much more elaborate classification of fees, which Chancellor Kent criticises, preferring to adopt Coke's simpler one.®^ Few law writers are always consistent in their classification of fees or in their use of epithets descriptive of their limitations.®* So, the terminology of the common law is not constant. The Eng- lish legal terminology arose subsequently to the reign of King Henry VH, and much of it is far more modern. It is true that pleadings were by statute directed to be in English as early as the reign of Edward III -^ but Latin and Norman-French remained the language of technical treatises, and furnished the terminology of the law until after Lord Coke's day, which, it will be remembered, was but shortly prior to the English occupation of New York. One of the most important contributions which Blackstone made to jurisprudence was the settlement of rnost questions concerning legal terminology. His commentaries furnished both a final classifi- cation of laws ^nd a precise and elegant legal terminology in the English tongue. It was from the pages of Blackstone that the revisers of the New York Statutes, in 1827-30, derived both their classification®? and their terminology. 81 Fees develop from inheritable cism of Washburn, Lead. Cas. Real feuds, and when feudalism is abol- Prop. 11, 19. ished become simple estates of in- ^ 36 Edw. Ill, St. i, c. 15 ; cf. heritance. Black. Coram. Ill, 317, et seq.; Wil- 82 Co. Litt. lb ; and see Edward son, Hist, of Modem English Law, 7. Seymour's Case, 10 Rep. gsb. ^6 gee Revisers' report to the Legis- 82 Comm. IV, 9. lature, with Part II of the Revised 8* See Sharswood & Budd's criti- Statutes ; Appendix II, infra. 20 Ti-iE Real Property Law. Conveyances. Having adverted to the history and nature of estates in land, according to the theory of the common law of England, and also to the different classifications of fees, let us next very briefly point out that the common conveyances of the kingdom were at first of two general kinds : (i) By matter of record, such as fines ; (2) by matter of deed, such as feoffment, grant, lease and release, and ex- change. After the reign of Henry VIII, we find certain old equitable principles fastened on the legal construction of certain deeds of bargain and sale and covenant to stand seised. But these latter as- surances may be regarded as substantially posterior to the Statute of Uses (27 Hen. VIII). ^ The most ancient mode of conveyance in the common law is, no doubt, the feoffment with livery of seisin. It properly was confined, as Coke says, to the transfer of a corporeate fee and not an estate for life. A feoffment or "donatio feodi" (gift of a feud), as its name implies, was originally, in all probability, confined to a gift in fee simple of a feudal estate.^" As delivery was essential to a perfect J. gift in the Roman law, so livery of seisin or possession came in feudal law to be the essential characteristic of this mode of transfer. So enduring was this ancient conveyance that a feoffment with livery of seisin was abolished in this State only by our Revised \ Statutes in 1830.^* Although prior to the Statute of Frauds (29 jCar. II, c. 3) a writing or charter was not essential to the validity of /this mode of conveyance, the accompaniment of a deed or charter I was very common long before that statute.®^ In the early common law the feoffment indicates, not the deed, but the act of infeudating only. It was a grant verbis inscriptis. The charter or deed, being no part of a feoffment, was usually in the past tense, reciting what had occurred. At a later day the evidence of the livery of seisin, with the names of the witnesses, was also usually indorsed on the charter. A relic of this ancient custom may be still detected in the language of the deeds of the present day, for they are usuallv phrased in both the present and the past tense. In a feoffment the primary and fundamental element was the livery of seisin, or, in 97 Co. Litt. pa. Cf. the change after »8The Real Prop. Law (Chap. S47, the Statute of Frauds in the legal Laws of 1896), art. VII, § 206. theory of a feoffment. Hargrave, 9* Preston, Shep. Touch. 203. Collect. lurid. II, 432. Introduction. 21 other words, the delivery up of actual possession.^ It is, however, apparent that, even before the Statute of Frauds, a writing was essential to a conveyance operating under the Statute of Uses as a bargain and sale ; for the Statute of Inrolments required such a conveyance to be enrolled.^ But even under the Statute of Frauds signaturewas not essential to a deed.^ Chancellor Kent thought thatTeoffments with livery of seisin were never used in this State as a mode of conveyance,* but he is contradicted by very early records in the public offices. This assurance was certainly lawful in New York until the Revised Statutes,^ and in some cases it must have been most appropriate, as where the entry was lawful it cleared all disseisins and defeasible estates which neither a fine nor a bargain or sale could do.® It is not, however, to be understood that a feofifment with livery of seisin was the only mode of passing a title to real property by the ancient law of England. The practice of using the forms of a litigation for the purpose of effecting a conveyance of land is also of great antiquity in English law, and the evidence seems to point to the year 1178 as the beginning of this mode of con- veyance,'^ a period eight years earlier than that mentioned by Dug- dale.* Fines, which simply denote agreements made in court in a judicial proceeding,® are much more ancient than recojsxls^,^" which, in practice, do not antedate the reign of Queen Elizabeth. ^^ Fines or agreements in court respecting title to land are said to be of Roman origin.^^ Subsequently to the beginning of the reign of Edward I, fines as a mode of conveyance were regulated by stat- ute,^* and ultimately when levied by tenant in tail they were declared by statute to be a bar to him and his issue." These statutes were in 1 Bisset, Estates for Life, 13 ; Spar- t Publications of the Selden Society, ' row V. Kingman, i N. Y. 242, 250. I, p. xxvii. 2 27 Hen. VIII, c. 16. 8 28 Hen. II ; Cruise, Fines and Re- 3 Preston, Abstracts of Title, I, 236. coveries, I, 2. * Comm. IV, 489. 9 Cruise, Fines, I, 2. 5i R. S. 738, § 136; The Real Prop. 10 Note to edition of 1827, Perkins' Law, § 206. " Profitable Book," 49a. 6 Co. Lift, pa ; Sanders, Uses, II, n Perkins' " Profitable Book," 49a. 12. Cf. Challis, 321 ; note 310 to 12 Cruise, Fines, I, 4, s, 6, 76. Co. Litt. 48a; McGregor V. Comstock, 13 jS Edw. I, c. 4; 34 Edw. Ill, ri7 N. Y. at p. 172, and note to Per- c. 16; 4 Hen. VII, c. 24. kins' " Profitable Book," 49, ed. of u 32 Hen. VIII, c. 36. 1827. 22 The Real Pkoperty Law. force in the province of New York, and were adopted by the first State Constitution and became a part of the statute law of New York/^ being repealed only by the Revised Statutes. ^^ Besides the conveyances indicated, there were long before the Statute of Uses two others recognized : "A lease and release," and " a grant with attornment. "^^ A " lease and release" was invented to avoid the necessity of livery of seisin. i® A grant passed a rever- sion to a stranger where no livery was possible. Both these modes of conveyance were less ancient than feoffment with livery of seisin. Surrender, exchange, and partition are sometimes classed with com- mon-law conveyances.^* But as they are not primitive types they need be only mentioned. Having now noticed the primitive modes of conveyance, let us pass to a further consideration of the nature of the interests tenants might take under the law regulating tenure, or, as commonly said, under the common law. Estates and Derivative Interests. It has been stated in substance that the early law of England was concerned only with the law regulating feuds. At a later stage, when feuds developed into settled estates of inheritance, easily transmissible inter vivos, the more common derivative interests in real property were designated " Hfe estates," " vested remainders " and " reversions," sometimes called " escheats." The more subtle, contingent and executory interests are not much spoken of in the Year Books, and it is questionable how far contin- gent remainders, or those limitations of an inheritable estate which were to vest on contingencies, were tolerated by the law before Lord Coke's time;^" and it will be remembered that he flourished but a very short space before the English occupation of New York 1^2 J. & V. 84; I R. L. 358; Van lessor, who might, therefore, pass the Ness V. Gardiner, i Cai. 59; Jackson freehold by a release without livery V. Smith, 13 Johns. 426; Lion v. Bur- of seisin. tiss, 20 id. 483 ; Roseboom v. Van i" Strahan on Property, 228. Vechten, s Den. 414. 20 gge the remarks of Mr. Joshua 16 2 R. S. 134, § 136; McGregor v. Williams in his elementary treatise Comstock, 17 N. Y. 162. on Real Property, 264, 265 ; Digby, 1'' Sugden's Introduction to Gilbert Hist. Real Prop. 230, 231 ; and also on Uses, xliv ; The Theory, etc., of Williams, Essay on Settlement of Es- Conveyancing, Hargrave, Collect, tates, Juridical Society Papers, I, 45. lurid. II, 4IS- ■5"^'^ cf. Maitland, Law Quar. Rev. VI, 18 By a lease the possession was 23; Pol. & Mait., Hist. Eng. Law, II, given, whereupon privity of estate 22. existed between the lessee and the Introduction. 23 in 1664. The variety of contingencies upon which remainders might lawfully be limited ultimately became so manifold in the law as to be almost innumerable. Mr. Fearne, the leading authority on this branch of the law, has, however, reduced contingent remainders to four general classes, subsequently very much glossed by Mr. Preston, Mr. Butler, Mr. Josiah Williams Smith, Mr. Wilson, and ■other commentators on the text of Mr. Fearne's great work! Several of those classes now have no longer any meaning in New York, since the Revised Statutes abolished the necessity of particular es- tates to support remainders and made other alterations in the law touching legal limitations.^^ Common Law Defined. It is perhaps desirable to point out at this place that where the " common law " of real property is spoken of it ordinarily does not now sigm^T^ustomafy law, or- the law of cus- tom, but the rules formulated at any time in the fundamental com- mon-law courts. Such rules must have been formulated without the aid of modern statutes.^^ In this sense of the term, the well-known ■controversy between Blackstone's text and Bentham's over the very existence of common or customary law^^ is wholly avoided and the term attains an exact meaning. But, in practice, the term common law is sometimes used more loosely to denote the entire jurispru- dence of England, including equity,^* and at other times it is so used as to include even the statute law of England.^ Common-Law Rules Kegulating Creation of Estates. Let us next briefly notice those rules of the common law which regulated the creation of estates prior to the Statute of Uses. It is commonly stated that, at common law, the usual method of conveying an estate of freehold to a stranger, was, by feoffment, with livery of seisin. The fee simple thus conveyed might be conveyed absolutely, or with a de- feasance or conditionally.^® But a fee could not be thus limited after a fee at common law, at least after the Statutes De Donis and 21 Part II, R. S. chap. I ; now " The 25 Bogardus v. Trinity Church, 4 Real Prop. Law,'' chap. XLVI of the Paige, 178, 198; Lansing v. Stone, 37 General Laws. Barb. 15 ; Reeves, Hist. Eng. Law, I, 22 Van Rensselaer v.' Smith, 27 Barb. 160, Finlason's note. 149; Crabb, Hist. Eng. Law, chap. I. 26 Burton, Real Prop. 7, et seq.; 23 Austin, in his Philosophy of Posi- Sugden, Powers, I, 2. A surrender, tive Law, emphasizes the controversy, release, exchange, and partition were 2* Manning v. Manning, i Johns, good without livery under certain Ch. 527, 531. circumstances. Challis, 321. 24 The Real Property Law. Quia Emptores, as strictly nothing remained to be limited over, after a fee simple estate was once disposed of.^^ Nor could a new estate be limited to take elifect upon the happening of the condition.^* No one but feoffor and his heirs could take advantage of a breach of the condition.^® The usual limitations were then very simple, creating an estate tail, or an estate for life with remainders over. The estates vested in possession or interest at the instant the seisin was delivered. As before stated, in the early history of convey- ancing vested remainders only were much tolerated in practice, and the common law contained certain canons which effectually pre- vented the creation of a perpetuity by means of a contingent remainder. At common law the freehold never could be in abeyance by act of the parties.^" This was a survival of the strictly feudal prin- ciple which required that there must always be a tenant of the fief to do the lord's bidding, and to respond to judicial process. For the same reason an estate could not, by the common law, be so limited as to exist at intervals and not continuously.^"^ A vested remainder might be limited on a term of years, but a contingent remainder required an estate of freehold to support it,^^ for other- wise there could be no livery of seisin at the time of the limita- tion of the remainder. For the reason indicated, no estate of freehold could be so limited as to take effect in futuro without an intervening estate.^^ Such are the chief rules of the common law 27 There is some dispute about the 29 Sugden, Powers, I, 2 ; Sanders, legality of remainders after fees con- Uses & Trusts, I, 150; Butler's note a, ditional, subsequently to the Statute Fearne, Conting. Rem. 382; Challis, De Bonis. Cf. Challis, 64, and 6 62, 119. Lond. Law Quar. Rev. 22 ; Van Home so Challis, yy, 78 ; cf. Black. Comm. ■ V. Campbell, 100 N. Y. 287, 291 ; Pol. II, 107 ; Van Nostrand v. Marvin, i&" & Mait. Hist. Eng. Law, II, 23. App. Div. 28, 32; Wood v. Tayloe, «^ 28 Sanders, Uses & Trusts, I, 149; Misc. 640. See infra under §§ 32, 40 Lewis, Law of Perpetuity, 49. But The Real Prop. Law. several fees may be limited in the ^^ Challis, 79, 81 ; Strahan on Prop- alternative at common law, by way erty, 3d ed. 138. of remainder, upon such contingen- ^2 Preston, Shep. Touch. 127; Lord cies, that only one may, by possibility, Hardwicke in Garth v. Cotton, i happen, Loddington v. Kime, i Salk. White & Tudor, Lead. Cas. in Eq. 224 ; Fearne, Conting. Rem. 373 ; Van p. 826. Home V. Campbell, 100 N. Y. 287, 33 Black. Comm. II, 165 ; Sanders, 292. Uses & Trusts, I, 141 ; Revisers' note Introduction. 25 regulating the creation of estates in lands. It will be found, upon investigation, that these rules take their rise in the period here indicated as the jurisprudentia antiqua, and are mainly of feudal origin, having direct relations to the law of tenure which forbade an abeyance of the feudal seisin ; for, by the feudal, or common law, there must always have been a tenant standing ready to do the lord's bidding. At a little later day a known tenant of the freehold was also essential to the maintenance of real actions.^* Out of these legal necessities sprang several of the so-called common-law rules of estates in land. A remainder, by the rules of the common law, before the Stat- utes of Uses and Wills, was created usually by feoffment and livery of seisin. It was a remnant of an estate in lands or tene- ments, expectant upon a particular estate, created at the same time.^^ It was the only estate of freehold which at common law could be created to take effect in futuro. In order to prevent the abeyance of the seisin, or to prevent a perpetuity, remainders became subject to very strict rules of law. They must await the regular determination of the precedent estate and be limited to take effect in possession immediately upon that determination.^® They could not be limited to take effect upon the determination of the precedent estate by forfeiture for breach of a condition, nor to take effect upon the expiration of an interval of time after the regu- lar determination of the precedent estate.^'' The particular estate \ preceding a vested remainder might at common law be a term of I years.^* But the particular estate preceding a contingent remainder of freehold could not be, because in such a case the seisin would not be vested, but would be in abeyance during the continuance of the contingency and consequently void."® At common law every contingent remainder must vest, or become an actual estate, during the continuance of the particular estate which supports it or on the very instant that such particular estate to art. I, tit. II, chap. I, part II, R. ^° Co. Litt. 143a. S. ; Cruise Dig. tit. i, § 36 ; Rogers v. 36 Watkins, Conveyancing, 100 ; Eagle Fire Ins. Co., 9 Wend. 611, 637; Fearne, Conting. Rem. 261; Sanders,. Jackson v. Dunsbagh, i Johns. Cas. Uses & Trusts, I, 155. 91,95. 37 (^hallis, 62; note of Revisers t& 34 Abbiss V. Burney, L. R. 17 Ch. D. i R. S. 725, § 27. 211 ; Sugden Intd. to Gilbert on Uses, 38 3 Rgp jp p. xl. ' 39 Goodright v. Cornish, i Salk. 226. 26 The Real Property Law. determines, otherwise it fails.*" This rule in itself tended to re- strain remote limitations by way of remainder. But the other rule of the common law, that the limitation of a remainder to the right heirs, as purchasers, of a person not in esse, is voicf^^ — restricted legal limitations to the unborn children of living persons. Neither a remainder nor any other estate of freehold could be limited on a fee simple absolute at common law,*^ but it could be limited on a fee tail,*^ subject, however, to the rule mentioned above. These rules were at common law to some extent restrictions on perpetuities ; tor even a fee tail could always be converted into a fee simple and the contingent remainders would thereby be barred. A contingent remainder might also be invalid because it was limited on a contingency depending on an illegal event, or on a too remote possibility, or because the condition on which it was limited was repugnant to some rule of law, or contrariant in itself, or inconsistent with the quality or nature of the preceding estate.*'' Until the Revised Statutes took away the necessity of a particular estate of freehold to support a contingent remainder and permitted, a contingent remainder to be limited on a term of years,*^ there could have been little question here that at common law the rule against perpetuities had no application to legal limitations by way of re- mainder,*^ notwithstanding Mr. Lewis was clearly of the opposite opinion.*'' The nature of the controversy on this point is considered in connection with the section now regulating perpetuities.*^ Uses. Having thus briefly pointed out the nature of the law con- cerning limitations of estates in lands by the jurisprndentia antiqua of England, let us next consider a phenomenon destined ultimately to subvert the ancient law, even while preserving its outward form. It is needless to say that we refer to Uses. Precisely as the ancient law of Rome — jits civile- — was modified by equity " natural is aquitas" acting through the more modern jus lionorarium and jus gentium, so the common or feudal land law of England was ulti- mately subverted when the chancellors recognized a separate equi- 40 Williams, R. P. 270 ; Sanders, 4* Fearne, Conting. Rem. chap. II. Uses & Trusts, I, 155. *5 i R. S. 724, § 24. "Challis, 91; Black. Comm. II, « Challis, 159; cf. Tudor, Lead. 179; Strahan on Prop. 142. Cas. Real Prop. 471 seq. *^ Co. Litt. i8a. *'' Sup. to Perpetuities, 97 et seq. « Challis, 241 ; Tudor, Lead. Cas. *» § 32, The Real Property Law. R. P. 719. Introduction. 27 table estate existing alongside of the legal seisin. The new estates called " uses " or " confidences " were thus gradually super-imposed, without at first actually disturbing the ancient law of tenures. The precise origin of the English " use " or trust is a point of historical controversy. While such origin and the nature of the jurisdiction of the clerical chancellors over uses are most inter- esting subjects, they need not now be dwelt on; at least prior to the time when the chancellor actually granted a subpoena to enforce such a trust at the instance of cestui que «J^.*®^ This was in the reign of Henry V. Long prior to this'TTme~the ecclesiastics must have enforced trusts and confidences in foro conscientice^" but it is when a use came to be enforced in an established court of Ihe realm by actual process issued at the suit of the beneficiary, that lawyers take notice of the innovation on the established law.^^ The statute i Richard III, dhapter i, next materially increased the power of the cestui que use.^^ From this point of time the history of uses is apparent, and the English law of land had obviously entered on its second stage, or juris prudentia media. The reason why uses or trusts came into such indirect prominence was that people had out- grown the law of tenure and desired to do more with their property than the strict rules of that law permitted; yet the time was not ripe for the actual repeal or abrogation of so venerable a system as that called the common law of land. The precise nature of uses prior to 27 Henry VIII, when the Stat- 1 ute of Uses was passed, is always the basis of any thorough legal discussion on uses after the statute,^^ for the characteristics of the *9 The recent history of English Uses, and the general commentaries Law by the learned Professors, Pol- on the Common Law for full exposir lock and Maitland, contains many tion of this subject. The following valuable suggestions bearing on the treatises may be found useful in any origin of uses. Sed cf. Mr. Justice profound investigation of this sub- Holmes, Lond. Law Quar. I, 162; ject. List of books on Uses and Digby, chap. VL Trusts published prior to New York 50 Gilbert, Uses, 3 ; Kerly, Hist. Eq. Revised Statutes, 1827-1829 : . 1660, 78. Heme (John), Law of Charitable ^1 Mr. Justice Holmes, Lond. Law Uses ; i2mo. London, 1660 (no copy Quar. I, 162 ; Sanders, Uses & Trusts, in this country that I know of) ; 1692, I, s; Digby, Hist. Real Prop. 388. Carthew (Serg. F.), Reading on the 52 Sanders, Uses & Trusts, I, 21, 22. Law of Uses (published in the Col- 53 See the excellent writings of Ba- lectanea Juridica, vol. i, p. 369) ; copy con, Gilbert, Sanders, and Cornish on iii N. Y. L. Inst. See this work for a 28 The Real Property Law. former uses determined the nature of the legal estate even after the Statute of Uses. The body of law referable to uses prior to the Statute of Uses is only to be found in the older books; but it is sufficiently referred to in Sugden's Introduction to Gilbert on Uses, and in Mr. Sanders' chapter on Uses and Trusts before the Statute 27 Henry VIII. It will suffice to point out that the sim- plicity of the common law relating to estates was much broken in upon by the recognition of uses, which were treated as susceptible of much more complicated limitations than the common law knew or tolerated. Thus, uses or confidences were treated objectively, and as things existing apart from the land. Uses were, there- fore, devisable at a time when the common law, in deference to its origin in the earlier law governing feuds, did not tolerate a will of lands.^* The incorporeal nature of uses admitted secret and in- formal conveyances without livery, and it was not tven necessary that the grantee of a use should be a party to the conveyance: so, very concise history of uses and com- mentaries on the prevalent modes of conveyancing. 1734, Gilbert (Lord Ch. B.), Law of Uses and Trusts; 8vo. London, 1734 (has passed through several editions), and Sugden's notes in edition of 1811. 1741, Bacon (Lord F.), The Case of Revocation of Uses; 8vo. London, 1741 (Bacon's Law Tracts, p. 233). Bacon (Lord F.), Reading on the Stat, of Uses (Ba- con's L. Tr. p. 299). 1791, Case on the Operation of the Statute of Uses, with the opinions of Mr. Booth and other learned counsel thereon (Coll. luridka, vol. 2, p. 421). 1791, Sanders (F. W.), Uses, Trusts; 2 vols. 8vo. London (has passed through several editions). I79S, Cruise (Wm.), An Essay upon Uses; 8vo. London, 1795 (nearly all of the above is incorpo- rated in Cruise's Digest of Law of Real Property). 1805, Duke (Geo.), Law of Charitable Uses; 8vo. Lon- don (ist ed. 1676), "a standard au- thority upon this branch of the law." 1787 (ist ed.), 1809 (2d ed.), High- more (A.), Succinct View of the His- tory of Mortmain and the Statutes Relative to Charitable Uses; 8vo. i vol., London. 1822, Randall (Henry), Essay on the Law of Perpetuity and on Trusts of Accumulation ; 8vo. Lon- don, 1822. 1824, Wilson (J.), Treatise on Springing Uses and other Limita- tions by Deed; 8vo. London, 1824 (reprinted in Law Library, Phil., vol. II). 1825, Cornish (W. P.), Es- say on Uses; 8vo. London, 1825 (re- printed in Law Library, Phil., vol. 3). 1827, Willis Trustees; 8vo. London, 1827 (reprinted in Law Library). Fletcher, Est. Trustees, London. Magazine articles: Law of Chari- table Uses, 16 Mo. Law Rep. 201; Doctrine of Uses in American Con- veyancing, s Amer. L. Reg. 641 ; Doc- trine of Uses, 6 id. 65; Trusts for Separate Use, i N. Y. Leg. Obs. 114; Resulting Trusts of Land, 3 Law Mag. 131; Religious Trusts, 12 L. Mag. Rev. 23. B* Excepting in a few places by cus- toms of those places. Introduction. 29 a use might be limited after a use,^^ and as the use was descendible in the same way as the legal estate, uses came to be a mode of limiting an inheritable estate after an inheritable estate, in a manner not tolerated by the common law.®® Thus, a use might effect a possession in futuro, and it might shift it from one to another owner by matters arising after the estate was created, or ex post facto. So, uses originally declared might be wholly revoked and new uses declared, provided such a power was reserved in the instrument creating the uses. But as equity was moulded on the civil law, the courts refused to enforce a donum gratuitum, and, indeed, in order to raise a use at all a consideration was required. Such were some of the principles recognized before the Statute of Uses (27 Hen. VIII, chap. 10)." While uses permitted much more subtile modifications of prop- erty than the common law, they were not an unmixed blessing, and in course of time they were undoubtedly employed as a means of defrauding creditors of their just dues, of thwarting the law against mortmain, and of avoiding the feudal obligations due to the lord of the fee by the law of tenure.®^ When this state of things came about Parliament attempted to check the evils discerned in uses. Creditors were aided.^^ The statute, i Richard III, chapter i,** intended to aid purchasers against covin of cestui que use, was, however, perverted so as to augment the power of cestui que use. Finally came the statutes, 23 Hen. VIII, chapter 10,*^ and the Statute of Uses, 27 Hen. VIII, chapter 10,®^ which last act is still, even at this day, influential throughout the law of real property in both England and the States derived from her empire. So potent has been the influence of this statute that it probably received its most perfect application in 1830 in the Revised Statutes of this State.83 The Statute of Uses (27 Hen. VIII, chap. 10) recites the evils incident to uses and then proceeds to provide a remedy whereby 58 Van Home v. Campbell, lOO N. B9 ^q Edw. Ill, chap. 6. Y. 291, 292. 80 A. D. 1483. 58 Supra, p. 23. 61 This act was directed against 57 See these principles tersely stated superstitious uses. by Cornish, pp. i8, 19, and by San- ^^ a. D. iS36j^^,,,,«*---«i»,,,,,,,_^^__^^ ders in his first chapter. ^^ Now*W7i, 72 and 73, THe Real 58 Sec the recitals in the statutes Prop. Law, infra. next mentioned. 30 The Real Property Law. the equitable interest or estate of cestui que use was intended to be converted into a legal estate of like nature. If the intention of this statute was, as some persons have thought, to annihilate the practice of creating novel interests or estates in lands and to re- store the feudal rules of tenure, it signally miscarried. The very statute itself, when compared with the strictly feudal law of land, shows that a great advance over the feudal system had already taken place. This purpose of the statute to restore the fruits of tenure would, if fulfilled, have carried society backward, not forward. It is doubtful if history affords an example of the successful enforce- ment of a law which is intended to restore an archaic system op- posed to the more modern habits of a nation. In any event the Statute of Uses failed utterly to take away any of the innovations which indirectly had already subverted the strict law of tenure in England. Some persons, including Coke, have thought that the Statute of Uses was designed to restore the early common-law conveyance by feoffment with livery of seisin, and to take away all the ante- cedent modes by which in equity interests in lands could be shifted about, on various contingencies, through the contrivances of uses.^* But the more philosophical jurist, Bacon, did not agree to this in- terpretation and his exposition of the statute triumphed.®' The result of this interpretation was, that the Statute of Uses was held to have fastened all the properties of the former use upon the seisin, or legal estate in lands. Thus, the effect of this statute was to transfer bodily the rational principles of equity to the purely legal Code of the nation. The statute not only led to many new prin- ciples touching actual conveyances of land, but it compelled the courts of law to take notice of interests in land before known only in the courts of equity. In the process of transferring a great body of principles from the courts of equity to the courts of law it is only reasonable to imagine that new doctrines would be enunciated. No doubt such was the fact in the case of uses, although we find the common-law judges disposed, after the Statute of Uses, to give force to the older, or common, law whenever the statute did not expressly dis- place it ; thus they held, that an estate could not take effect as a use, 64 I Co. I2S a, b. "' I Co. 130. Introduction. 31 if it might take effect as a " remainder."''^ So the estates raised by the statute became Uable to all those rules to which estates raised by the common law are subject, with this distinction, that the' former might be overreached by a power, or a conditional limita- tion, or by clauses of cesser which formerly had accompanied uses in their fiduciary state.^''' The old law of land was never regarded as expressly abrogated by the Statute of Uses, and the principles of feudal tenure continued, after the statute as before it, to pervade the law concerning land. Thus, before the statute might be operative at all, some one must be seised to the use. So the necessity of actual seisin was postu- lated by both the old law and the new.^^ The old feudal law of tenure always required that there should be a tenant of the freehold. The /)o.fi-statutory law of uses also required seisin in order that the transubstantiation of the use might be effected by the statute. The Statute of Uses did not change the nature of estates whether in fee or in tail. It simply permitted interests in a fee simple to be created upon the principles formerly regulating uses, and it also brought about new forms of conveyance. The intricacies of the English law of real property after the Statute of Uses are mainly due to the continued attempt to supersede the ancient feudal law by indirection ; for, as stated above, the feudal or common law was never expressly abrogated, either by the Statute of Uses or by the statute taking away the burdens of the feudal tenure.*® In the course of the judicial exposition of the Statute of Uses certain leading principles were from time to time determined, and may be briefly summarized as follows :™ ( i ) That, before the stat- ute operated to join the fiduciary interest to the legal title, there 88 Cf. Wolfe V. Van Nostrand, 2 N. remainder or reversion of which the Y. 436, 442 ; Strahan on Property, husband is not seised in possession 163 ; Lord Hardwicke, in Hopkins v. before his death. Hopkins, i Atk. 581; West, 606; 89 12 Car. H, chap. 24. Purefoy V. Rogers, 2 Saund. 380 ; Cole ™ These principles are really the V. Sewell, 4 Dr. & W. i, zy \ 2 Ho. basis of all future commentaries on Ld. Cas. 186; Abbiss v. Burney, uses and trusts. Sanders and Cornish L. R. 17 Ch. 211, 217; Re Lechmere furnish the most methodical treat- & Lloyd, 18 Ch. Div. 524. ment at great length, and in more 8'? I Preston, Estates, 158. precise legal language. Tudor's note 88 As a survival of this see, under to Tyrrell's case will refer the reader section 170 of the Real Property Law, to the judicial authorities on the dif- that a widow is not endowed of a ferent principles. 32 The Real Property Law. must be a person competent to raise a use (/. e., to declare a trust) ; a person competent to take the legal title to land ; a competent bene- ficiary or cestui que use; an intelligible use or trust, and a form of conveyance recognized by the courts. (2) That the statute did not operate on all trusts or confidences, but only on those passive trusts where the former trustee had the naked legal title and the former cestui que use took the profits and at will directed the trustee to convey or make estates. The trusts or confidences which the statute operated on are, from this time on, known as uses^'^ and those which the statute did not affect are known as trustsP The common-law courts took cognizance of uses executed by the stat- ute, and the lord chancellor took cogniz*nce of trusts.''^ While " uses " were being thus construed, the old conflict between the common-law courts and the courts of equity is again discernible. The form^ held, in Tyrrell's case,''* about the year 1557,^^ that there could not be a use on a use ; that is, that the Statute; of Uses executed the first use and ignored a second. Then the lord chan- cellor decided that this second use might be enforced in equity as a trust. This decision again restored or augmented the narrowing jurisdiction of the chancellor, and has been the subject of unde- served criticism. Thus, Lord Hardwicke said, in substance, " that a statute made upon great consideration * * * has had no other effect than to add, at most, three words to a conveyance."''® This statement, however, is true of one class of limitations only. The Statute of Uses accomplished much more than Lord Hardwicke stated. It compelled courts of law to take notice of conveyances made on conditions and under circumstances not formerly tolerated by the old common law or in the fundamental courts of law. The statute did not make a real innovation, but it became the basis of modern conveyancing, because it was held to sanction certain cus- toms, dealings and contracts well-approved of by the people of England, although they were not consistent with the rules of the common or feudal law of land. Thus Lord Hardwicke's epigram- ■71 Charitable uses excepted. ''* Dyer, issa ; Tudor, Real Prop. ■^2 Charitable trusts excepted. These Cas. 33s. trusts continue to be called " chari- 76 Anno 4 & 5 Ph. & M. table uses." T6 j Atk. 591. ''s Including those trusts still called " charitable uses.'' i Introduction. 33 matic statement concerning the effect of the Statute of Uses is only partially accurate and very far from complete. The full result of the Statute of Uses on the law of land was not seen immediately. In this connection we should remember that England, in the reign of King Henry VIII, is not to be regarded as the England of King Charles II. In Henry's time London con- tained probably not 90,000 persons, and there were no other large cities then established in England.'''^ The outward form of the law of land was still feudal ; the social structure purely so : but the gen- eral employment of " uses," or beneficiary estates, during and after the Wars of the Roses, had impaired the substance of the common or feudal law long before the Statute of Uses. The Statute of Uses only made that the law in England which had thitherto been the practice. It will be found, on examination, that several later intricacies in the law of conveyancing, under the Statute of Uses, are attributable to the troublesome times under the Stuart dynasty. Thus both custom and civil war have been very influential on the form of the law of real property as it stood in England until re- cently, and in New York until the year 1830, when the Revised Statutes took effect. After the Statute of Uses the forms of conveyance recognized in courts of equity — bargain and sale and covenant to stand seised — became perfect conveyances both in law and in equity. Conveyances of real property inter vivos thenceforth divide themselves into two great classes ; those operative by force of the common law and those operative by force of the Statute of Uses. In technical language the former correspond very nearly to the class of conveyances later on said in the books to operate " only by transmutation of possession," while the latter correspond with those said to be operative " without transmutation of possession." Retrospect. We have now arrived at a point where the principles, forms and modes of conveyance of real property remain fixed for nearly three hundred years. Land might be conveyed inter vivos by the common-law conveyances, feoffment with livery, by fine or recovery, by lease and release, and by conveyances operative in law by force of the Statute of Uses, and known as " bargain and sale," and " covenants to stand seised." The ''''' Gardner, Hist. Eng. I, 356; Gardner gives London 130,000; Adams, Adams, Civilization & Decay, 203. quoting Rogters, 50,000. 3 34 The Real Property Law. conveyances operative by the common law have already been noticed; it remains to consider the theory of lawyers concern- ing the other modes indicated. A bargain and sale was known before the Statute of Uses, and courts of equity then enforced such agreements respecting lands. The Statute of Uses saved the necessity of troubling the chancellors, and held that the bar- gainee was seised by virtue of the Statute of Uses. So, " a cove- nant to stand seised " which, before the Statute of Uses, was enforceable only in equity, was on the same principles as before regarded by the courts of law as operative by force of the statute. Such is a brief summary of the history and of the practical opera- tion of the different conveyances after the Statute of Uses.''^ The niceties of application and fine distinctions are to be found only in the older books on the law of real property. Statute of Wills. The Statute of Uses having converted passive or ' naked uses into legal estates possessing the same quality as the former use, took away the custom of limiting a use in lands by a last will. While at common law lands in most places were not de- visable before the Statute of Wills (32 & 34 Hen. VIII), yet an owner of lands might before those statutes enfeoff another to the uses declared by the grantor's last will and such uses were enforced in equity. Thus by indirection lands were devisable before the Statute of Wills, which was enacted soon after the Statute of Uses had made devises of the lands themselves necessary to preserve testa- mentary dispositions. The Statute of Wills made it possible for an owner of lands held by the tenure of free and common socage to devise the same at his pleasure to any person except a body politic. As the Statute of Wills was passed after the Statute of Uses, it became an interesting question how far the Statute of Uses operated on a title or seisin conferred by a will; as for example where the will gave the lands to one to hold for the use of another than the devisee. It was held that the Statute of Uses did operate in such a case and that such a cestui que use might take the legal estate in a proper case by force of the Statute of Uses.™ TS Many writers treat of this subject also Strahan on Property (3d ed.), at great length; none more perspicu- pp. 232, 233. ously than Sanders (Uses & Trusts, ''9 Sanders, Uses & Trusts, I, 19s ; vol. II), and Sugden (Introduction to Sudgen, Powers, I, 238; Jarman's Gilbert on Uses, ed. of 1811). See Powell, Devises, 214, note 2; 217, note 3 ; Ram, Wills, 254. Introduction. 35 History of Limitations of Estates. This much of the history of the forms of conveying property, enables us to turn next to the history of the limitations contained in the conveyances themselves. In England, whence we derived our early law, the law of real property after the Statute of Uses, and to some extent before that statute, bears the impress of a persistent attempt to settle land in families in such a way that it could not be alienated. During the civil wars the great conveyancing lawyers of England elaborated the forms of family settlements to the end indicated.*" In and subsequent to the reign of King Charles II, new subtleties of various kinds were resorted to in order to regulate alienations. Thenceforth the learn- ing and ingenuity of the great conveyancing counsel were directed to family settlements containing very complicated limitations. Both the learning and the ingenuity of counsel were stimulated by the importance of such settlements, sometimes involving a whole county and the rights of numerous tenants as well as the honors of noble- men and the rights of gentlemen of ancient family. Thus as a family settlement sometimes created an imperium in imperio, or a little State within a greater State, the learning on the subject of set- tlements of landed estates became very precise and apparently most involved to laymen, although in reality it was founded on premises partly historical and partly logical. With this account of the general principles, or rationale, animating the English law of land, we are prepared to consider particular limitations of estates contained in settlements and conveyances. Chronologically, the history of limitations of estates in lands marks, as Mr. Butler thinks, five distinct stages in the law of Eng- land after the feudal settlement :*^ ( i ) The creation of a fee simple conditional. This suspended the power of alienation only till the happening of the condition. (2) Then came the Statute De Donis Conditionalibus, which took away the tenant-in-tail's power of aliena- tion and multiplied entails, always leaving a reversion in the donor. (3) Entails were finally broken by judicial fines and recoveries.®^ *" See, for example, Foss, Bio- chap. 24 ; Lewis, Perpetuity, chaps. I graphica Juridica, sub nom. Orlando to X ; Burton, Real Prop. chap. I ; Bridgeman. ^ note of Mr. Butler to Fearne, Reraain- 81 Note Co. Litt. 290b ; cf. Atherly ders, 382, and note, id. 562. Family Settlements, chap. I ; Sugden, 82 Taltarum's case, A. D. 1472. Powers, I, chap. I ; Cruise Dig. tit. 32, 36 The Real Property Law. To thwart this result, women seised of estates tail of the gift of r their husbands were prohibited from alienating these estates by statute (ii Hen. VII, chap. 2,6)?^ In this way the concurrence of both spouses to alienate settled lands was required, and this was some protection in family settlements. (4) A fourth mode of set- y^tlement was efifected by limiting life estates to parents with re- mainders to their unborn children by purchase. Here the difficulty was that the life tenant and the reversioner could cut ofif the re- mainders. Then the devise of trustees for preserving contingent •- remainders was invented by Sir Orlando Bridgertian.®* (5) The fifth stage of settlemen,ts appears to have been the introduction of powers under the Statute of Uses. When the EngHsh law was introduced in New York the possibilities of the fifth stage of settle- ments had been reached in England,*^ and were, of course, available in practice in New York. Yet it would be inaccurate to say that prior to the reign of King James II settlements had reached their final complexity, even in England. The English lawyers seem to have attained their greatest power of invention only in the eighteenth century.*® Then it was that settlements became most complex by reason of the introduction of powers and the more frequent limita- tions of shifting and springing uses.*'' Classification of Uses. The Statute of Uses having fastened the quality of the old use to the legal estate, the English law of real property became the subject of increasing scientific consideration, and at a later day of much professional discussion. The precise *3 Husbands seised in right of their i Juridical Society Papers, 45. Sed wives were prohibited by Stat. 32 cf. as to the earlier origin of con- Hen. Vni, chap. 28. tingent remainders, Law Quar. Rev. 8* He was born in 1608 and was VI, 22, 23 ; Pol. & Mait. Hist. Eng. called to the bar in 1632; he became Law, II, 22. a bencher a few weeks before the **• Vide Crabb, History of English restoration of Charles II. During Law, 537, 538. the interregnum he became the oracle *® Cf. Lord Mansfield in his judg- of the conveyancers. Foss, Biog. ment in case of Buckworth and Jurid. ; cf. Vanderheyden v. Crandall, Thirkell in the K. B. ; i Hargrave, r 2 Den. 9, 16, et seq. See also David- Collectanea Juridica, 335. In 1722 son's Precedents, III, 197. For an ac- Wood, in the preface to his Insti- count of the origin of the Fourth tutes, notices the increasing com- Mode of Settlement by contingent re- plexity of settlements and convey- mainders to unborn children, see also ances " beyond former times.'' Williams, " On the Origin of the 8T ggg usual form of settlement, Present Mode of Family Settlements," Appendix to 2 Black. Comm. Introduction. 37 nature of valid executory limitations of property under the Statute of Uses forms an intricate, and perhaps an arbitrary, learning, yet one not wholly devoid of principle. The legal estates called uses were classified variously, and by none more skilfully than Sir Edward Sugden, who divides them into (i) "shifting or second- ary ; " (2) " springing," and (3) " future or contingent " uses. The shifting uses took effect in derogation of some other estates. Spring- ing usci were those estates limited to arise on a future event, where no preceding use was limited. Future or contingent uses were estates which took effect as remainders,^^ although limited as uses. In course of time future estates, taking effect as uses, were often called by the more scientifically disposed lawyers of the latter part of the eighteenth century ,^^ " execu tory inter ests " — a term gradu- ally including also those future interests in lands which were created by a will. Uses were again classified either as vested or contingent. Such a division of estates, interests and property in land, is entirely natural and primary. After the Statute of Uses, estates, or interests, in lands might be made to take effect in possession, either by the hap- pening of an act of God, such as on a death, or on a birth, or on an act of man, such as the designation of new uses by a person named. When the use arose on an event specified in a deed or settlement, it was either a shifting or a springing use.^° When it arose by the act of a person nominated to appoint the estate it was a use arising from the execution of a pozver. Uses might be preceded by a fee or they might follow a particular estate.^^ Many rules and distinctions concerning uses were, from year to year, laid down by the judges of England. It is quite unnecessary to attempt to state many of thern^ ; but a few may well be borne in mind : Before a springing use vested, the use was said to result to the owner of the fee. A future use could never take eft'ect as a use if it might inure as a remainder.^^ This rule was only a tacit 88 Sugden's notes on Gilbert, Uses, 89 Mr. Booth, Mr. Bntler, Mr. Har- passim. See, also, the introduction grave, and many others, to same. In no other book is the ^ Strahan on Property, 164. law of Uses more concisely and ad- "l Cornish, Uses, 92. mirably treated. See, also, Cornish, ^"^ Supra, p. 30; Cornish, Uses, 81; Uses, for an excellent summary of Wilson, Springing Uses, 2; Wolfe v. the law. Van Nostrand, 2 N. Y. 436, 442. 38 The Real Property Law. deference to the older law, for " remainders " were long ante- cedent to " uses." Effect of the Statute of Uses. The reforms introduced in the common law of conveyancing by the Statute of Uses are briefly these : ( i ) At /^ common law no one not named could take immediately by a convey- ance; thus a child unborn could not take. But by a use to one for the benefit of the child unborn, the latter might take on coming into the world. (2) A conveyance by a man to his wife was bad by the common law, but might be effected by the conveyance to the use of the wife. (3) At common law a grant of a freehold to commence in futuro was void, but by a use the freehold might be made to take effect in the future. (4) At common law the reserva- tion of a particular estate to the grantor was bad ; but such reserva- tion could be effected in a conveyance to uses. (5) At common law the reservation of a power to the grantor was invalid, but it was good in a conveyance to uses. (6) At the common law an estate granted could be defeated only by a condition, but after the Statute of Uses a power to defeat an estate might be reserved in a conveyance to uses. (7) By the common law, a condition, except in a conveyance of an estate for years, must defeat the whole estate granted. But in a conveyance to uses, a power to defeat part of the estate granted might be reserved; e. g., a leasing piower which de- feats but part of the estate granted. (8) At common law no one taking an estate by grant can by rightful alienation grant a larger estate than his own. But in a conveyance to uses the donee of a power may grant a larger estate than his own. (9) While at the common law several persons coming in esse at different times always took as tenants in common, by a conveyance to uses they might take as joint tenants. (10) At common law successive estates must be limited as particular estates and remainders, but since the Statute of Uses successive estates may take effect in derogation of the prior estates limited at the same time. (11) At common law one fee could not be limited after, or dependent on, another fee; but in a conveyance to uses a fee may be limited to the use of one and on the happening of a given event to another. Such were the reforms made good even at law by the Statute of Uses.** Effect of the Statute of Wills. The old rules of the common law of land were also much modified by the Statute of Wills, and as the Statute 93 Preston, Conv. II, 475 ; Sudgen, Intd., Gilbert on Uses, note, p. 78 seq. Introduction 39 of Uses was held to be applicable to those uses, limited by way of a will, a new set of rules touching estates created by will sprang up. Since by a devise, a freehold must pass, if at all, without livery of seisin, it might be devised to commence in futuro, contrary to the rule governing legal limitations f* and since it might commence in futuro no particular estate was necessary to support it.^^ So, by a devise a fee might be limited after a fee contrai'y to the common law governing remainders. But it was soon held that an executory devise must take effect in possession within the period subsequently fixed by the rule governing perpetuities.^* This law is generally systemized under the head of " executory devises." But there might be a springing, a shifting, or a future use created by a will and also a " remainder."^^ The fact that a common-law re- mainder could thus be created was a new fact in English law. When a use was created by a will it took effect on the same prin- ciples that governed uses created by deed. But a gift of an estate to take effect in future when limited in a will need not be operative as a use or as a remainder, and it need not comply with the common- law rules touching estates. Before the Statute of Uses could act on an equitable estate there must be a person seised. By a will a gift could take effect in futuro contrary to the rules of the common law, and it could be made direct to the donee without the inter- position of a third person to stand seised.®* Executory Devises. An " executory devise " is properly defined " as a limitation by will of a future estate, or interest in land, which can- not consistently with the rules of law, take effect as a remainder."*" But a remainder may also be created by a will. Before the Statute of Uses, we have seen that a remainder could be created only by a common-law conveyance. Now, after the Statute of Wills, it might { be created by an irregular instrument called a will. This instru- ment always took effect on the death of the testator.^ It was a deference to the more ancient law to call such a devise a remainder. ** I Sid. 153. conveyance, Fearne, Conting. Rem. 95 Cro. Jac. 593. 387; Watkins, Conveyancing, 114. »6 Cruise Dig. tit. 38, c. 17, § 22 ; 98 Cf. Burton, Real Prop. 100. Strahan on Property, 164, 165. 99 Powell, Devises, 11, 237, and cases 9'' A remainder created by a will cited ibidem. was given the same effect as a re- 1 Ibid. II, 9 ; but until recently a mainder created by a common-law will did not operate on real property ' acquired after its date or execution. 40 The Real Property Law. So doing necessarily involved this consequence, that where the devise was a contingent remainder, there must be a particular estate of freehold to support it; and, also, that it must vest during the particular estate, or at the moment the particular estate terminated, or not at all.^ It may be doubted whether such a result accorded with the spirit of the Statute of Wills. In deference to the older law the courts also held that if by a will a particular estate was created and thereafter such an estate as would at common law have been a remainder, it would be construed as a remainder and not an executory devise.^ If the limitation contained in the will was con- trary to the legal conception of a remainder, in that it could take effect only contrary to the rules of the common law relating to remainders, the devise might still take effect as a use,* or as an executory devise.'' The interest itself thus devised was, as stated above, called an " executory interest ;" but the instrument effecting it was an " executory devise."" The latter term is often misem- ployed^ to denote also the interest taken under such a devise.^ Mr. Powell (in imitation of Mr. Fearne's classification of con- tingent remainders) has reduced executory devises to several classes,® and his definitions are both simple and perspicuous. Other classifi- cations more elaborate have been attempted,^" but they all sub- stantially involve only two leading classes of devises: (I) A sub- stitution of one fee for another upon some determinable event. (II) A fee to commence in possession at some future day without the intervention of a particular estate.^^ In addition to the two species of executory devises mentioned, there might be a remainder limited in a term of years contrary to the rule of the common law.'^ 2 Williams, Real Prop. 315 ; Pres- ^ Challis, 57. ton, Abstracts, II, 153, 154; Challis, ''Challis, 56. 96. ^ E. g. 30 Am. Law Rev. 69. 3 2 Bos. & Pull. 2q8. 9 Powell, Devises, II, 237. * Cornish, Uses, 96. l^* See note to 2 Sharswood & 5 Challis, 57, 58 ; Inglis v. The Trus- Budd's Lead. Cas. Real Prop. 467. tees of Sailors' Snug Harbour, 3 Pet. n Inglis v. The Trustees of Sailors' (U. S.) 99, 115; Sanders, Uses & Snug Harbour, 3 Pet. (U. S.) 99, 115; Trusts, I, 250-254, If the limitation Tilden v. Green, 130 N. Y. at p. 47 ; might take effect as a remainder, it Fearne, Conting. Rem. 504; Van could not take effect as a use or de- Home v. Campbell, 100 N. Y. at vise, Wolfe v. Van Nostrand, 2 N, p, 292. Y. 436, 442; Challis, 96, 97, 12 Cruise Dig. c. 19, tit. 38, §§ i, 2, Introduction. 41 Sometimes a limitation was so framed as to take effect as an executory limitation in one event, or as a remainder in another.^* In the latter event the strict common-law rules relating to remam- ders applied, and the remainder might be defeated, unless it vested in or at the moment the particular estate terminated. But if the event occurred in which the executory limitation was to take effect, then all the liberal rules relating to executory devises were appli- cable. This was certainly an anomaly, and came from attempting to graft a new shoot on the old trunk of the common law. Fortu- nately, all these inconsistencies are now remedied in the State of New York by the Revised Statutes and The Real Property Law.'* It has been said in a recent case that there is no longer any such thing in New York as an executon/devise,^^ and in another place that in New York State execjito^ devises may in principle now be introduced into deeds,^^ meaning thereby that all executory limitations are with us now reduced to precisely the same rules, whether such limitations are contained in wills or in deeds. In this sense both the foregoing statements are accurate.^^ Rule against Perpetuities. When these new rules touching future uses and executory devises began to be applied to the creation of estates in lands, it became manifest that some rule must be laid down governing the period in which executory interests must vest, for every executory devise was, as far ag-'it went, a perpetuity, that is, an inalienable and indestructible imerest,^* and so a shifting or a springing use was indestructible and inalienable. Neither executory devises nor such uses could be barred by a fine or a recovery.^^ The courts were, however, a long time in formulating the rule against perpetuities, beginning with the case of Pells v. Brown in 1621,^** and finally ending with Cadell v. Palmer^^ in 1833. The history of the struggle has been admirably written by Mr. Lewis in his work on Perpetuities,^^ and by Mr. Hargrave in his argument in 13 Powell, Devises, I, 245. i^ Lewis, Perpetuity, chap. 10; Jack- 1* Tlie entire text of this new act son v. Bull, lo Johns. 19, 21 ; Lee, follows this Introduction. Abstracts of Title, 59 ; Sugden, Intd. 15 Tilden v. Gre^, 130 N. Y. at to Gilbert on Uses, Ivi, and note, p. p. 47. 1/ 163, ibid. IS Sharswood & Budd's Lead. Cas. 20 ^ro. Jac. 590 ; i Eq. Abr. 187, c. 4, R. P. 11, 467. 21 I Clark & Finnelly, 372. 1" Vide infra. 22 Chap. 11. 18 Moffat's Executors v. Strong, 10 Johns. 12, 17. 42 The Real Property Law. the case of Mr. Thelluson's Will.^^ The rule finally established in England is that vesting may be suspended during a life or lives in being, and twenty-one years afterward, as a term in gross, without reference to the infancy of any person whatever, and that a person en ventre sa mere is, for the purposes of this rule, considered as in €xistence.^* Persons not bearing in mind that an infant en ventre sa mere is to be considered a Hfe in being fell into the error of adding the period of gestation to the term in gross of twenty-one years,^^ but this is not accurate, as is pointed out in the commentary on The Real Property Law.^* The rule against a perpetuity had originally no reference to remainders. Remainders had a set of principles of their own pre- cluding a perpetuity f^ a contingent remainder, for example, re- quired an estate of freehold to support it,^^ and it could not be limited after a fee simple.^^ So the limitation of a remainder to the right heirs as purchasers of a person not in esse was void.^" These rules, together with the power to bar or defeat contingent remainders, and the consequent chance of the destruction of the remainders by the determination of the precedent estate before the vesting of the contingent remainder, were quite sufficient to prevent a perpetuity by means of a contingent limitation, effected by a common- law assurance. Vested remainders, of course, never tended to a perpetuity before the Revised Statutes entirely altered the meaning of the term " remainder," so as to include in it shifting uses and executory devises. Then the statutory rule against perpetuity was necessarily made to apply to these statutory remainders.^^ 23 4 Ves. 247 ; 2 Jur. Arg. 7. 29 Challis, 63, 64. 2* Artnitage v. Coates, 35 Beav. I. 30 Challis, 91. 25 Tudor, Lead. Cas. R. P. 464; and si Mr. Lewis points out that the see the writer's " Law of Char. Uses, old rule against a perpetuity arose Donations and Trusts in New York," because executory interests and note to pp. 147, 148. uses, after the Statute of Uses and 26 Under § 32, infra. Wills, were held not to be destruct- 27 Challis, 158, 159, i6o; Mr. Butler's ible, in the same way that contingent note, Fearne, Conting. Rem. 561. remainders were destroyed. (Lewis, 28 Wharton, Principles of Convey- Perpetuity, 128, 132, 134. To the ancing, loi ; Lord Hardwicke in Garth same effect, Andrews, J., in Van V. Cotton, I White & Tudor Lead. Home v. Campbell, 100 N. Y. at^ Cas. in Eq. at p. 826. p. 305.) \/ Introduction. 43 Nor had the rule against perpetuities any reference to limitations subsequent to an estate tail, for estates tail could be barred by a recovery which destroyed all subsequent executory limitations.^^ Statute 12 Car. II, chap. 24. The confirmation of the abolition of the burdens of feudal tenures by the statute 12 Charles 11, chapter 24,'^* which turned all lay tenures into tenures by free and common socage, marks the formal ending of the feudal system in England. There- after the feudal law remains of importance only because it had been the basis of the earlier law of land, and in legal theory had never been abrogated.^* In the reign of James I, the project of relieving tenants from the feudal burdens had been very much dis- cussed, and was finally consummated under the Commonwealth,^ being only confirmed by the act 12 Charles II, chapter 24. New York. At the time when the territory now embraced in the State of New York was granted by King Charles II to the Duke of York (afterward James II), the law of England touching lands had entered on the modern stage of its existence. But it was still affected by many archaic incidents which have only comparatively recently been swept away.^® By the patent granted by King Charles II to the Duke of York the territory was holden of the Crown by the free and common socage tenure. This grant,- neces- sarily introduced in the province the contemporary Englash law relating to this tenure with all its incidents, including the/common law of descents and antecedent statutes. The adoption of English statutes involved the interpretation put upon them by tne English courts of law.^'^ 1 When the Duke of York became James II ana hts proprietary rights merged in his Crown, the Crown was boun^by the statute (12 Car. II, chap. 24) and henceforth could make no grants to be holden by any other lay tenure besides free and common socage. Owing to this fact it became common in New York to omit the tenure in deeds. Thus the importance of tenure ceased to be empha- 32 Challis, 146. 3^ See, for confirmation of this, the '* A. D. 1^60. preface to the New York edition of 3* See " FeSa^ism " in pth ed. Ency. Booth on Real Actions, printed A. D. Britannica. ' 1808. 35 A. D. 1645. In the reign of King 37 Reed, Stat, of Frauds, § 3, p. 6, James I, propositions to commute the citing Tomson v. Ward, i N. H. 12. feudal rights of the Crown for a sum in gross were considered. 44 The Real Property Law. sized. But tenure was not swept away in New York until nearly two centuries after its explicit introduction. In the year 1664, when the English took possession of New York, the law of the reformed socage tenure was far from attain- ing the stage it reached by the time of the war of American Inde- pendence. The Statute of Frauds (29 Car. II, chap. 3) had not yet been passed in England, and lands might still be conveyed there by feoffment and livery of seisin without deed. But the " Duke's Laws " from the very first (A. D. 1665) required a writing in New York in order to transfer title to lands. Thus, before the English Statute of Frauds was enacted, New York had a like stat- ute of its own.^^ But, as we have seen, the Statutes of Uses and Wills had long before the reign of Charles II given the law of real property its modern direction while the statute 12 Charles II, chapter 24, had lifted the feudal burdens from the socage tenure.^" Thus all the forms of conveyance already indicated as adopted in England after the Statutes of Uses and Wills were of equal relevancy in the province of New York after the English occupa- tion in 1664.*" The English statutes prior to the end of the reign of King Charles II were generally acted on in New York, while the common law of England, in so far as it was not unsuited to local conditions, was the law of the province.*^ In the province of New York the more complex English settle- ments of estates in lands were very unusual and unnecessary. The ordinary mode of conveying freehold lands at first was by a com- mon-law feoffment with livery of seisin, the livery being indorsed on the deed.*^ Subsequently conveyances of record, fines and re- 38 The statute (27 Hen. VIII, chap. ** See a devise in tail in Steadfast 16) requiring all bargains and sales ex dem., etc., v. Nicoll, 3 Johns. Cas. to be enrolled within six months 18. \. after the date thereof, had in point *l M. A. Baptist Chrfrch v. Baptist of fact introduced the necessity of a Church in O. St., 46/Tj. Y. 131, 141. writing in conveyancing, although in 42 Jn New York, by the " Duke's law feoffments with livery were still Laws," a writing was always neces- valid without a deed or charter. But sary before the English Statute of the latter was customary even when Frauds was passed. Hence, the the conveyance was feoffment with feoffment consisted of. two parts, the livery. charter and livery. (See Burton, Real 39 The feudal law was never in force Prop. 7.) But it has been said, that in New York. Van Rensselaer v. at common law feoffment and livery , Smith, 27 Barb, at p. 149; People v. were the same act. ChSHis, chap. 28; Van Rensselaer, 9 N. Y. at p. 338. McGregor v. Comstock,yt7 N. Y. at Introduction. 45 coveries, and deeds operating under the Statute of Uses, bargains and sale, lease and release, and covenants to stand seised, became common in New York until the Revised Statutes, in 1830, substituted the simple grant and abolished feoffments and fines and recoveries.*^ The complex forms of English settlements had even then been Iittie resorted to here, although as the Statutes of Uses and Wills** were in full force after 1664, the more subtle forms of conveyance were quite among the possibilities in 1829.*^ But in practice, prior to the Revised Statutes, there seems to have been a preference in New York for the simpler forms of conveyance.*® The deeds met with generally passed a fee simple, and, after the abolition of estates tail, very few derivative estates, except leaseholds, were met with in common practice. Occasionally lifeinterests were limited by a will, with vested remainders over, and so, sometimes, contingent remain- ders were limited. The common-law rules relating to perpetuities were in full force until 1830, yet very few cases had arisen here involving these. Remainders did not then contravene the rules against perpetuity.*'' There were a few instances of executory limita- tions and devises, as the Statute of Uses had been in full force since the year 1664. But settlements creating trust terms and powers deriving their effect from the Statute of Uses were uncom- mon up to 1830.** Entails were not unknown in the case of the larger estates, but they could be so easily broken and barred that they were not regarded as even tending to a perpetuity.*' Effect of Independence. The War of Independence made but slight changes in the law of real property in New York. The first Con- stitution of the State expressly continued the common and the statute p. 173. Cf., § 206, The Real Property Abridgements of Touchstone of Corn- Law, infra. mon Assurances ; and see vol. II, San- *3 I R. S. 738 ; 2 id. 343 ; McGregor ders, Uses & Trusts, 1-150. V. Comstock, 17 N. Y. 162. ^ *'' It was the abolition by the Re- ** Contained in Jones & Varick's re- vised Statutes of particular estates vision of 1788, 1789. Ip the Matter of to support remainders that made con- Will of Fox, 52 N. Vf at p. 534. tingent remainders obnoxious to the *5 See Revisers' notes to ^article of new rule against perpetuities. Vide, Revised Statutes on Powers, infra, infra. The Real Prop. Law. Appendix 11 ; Kent, Comm. IV, 87-94. ** Revisers' notes to article on Pow- *6 These forms are described suf- ers ; Kent, Comm, IV, 87-94. ficiently in Watkins on the Princi- *' Steadfast ex dem., etc. v. Nicoll, pies of Conveyancing, vol. II. See, 3 Johns. Cas. 18. also, Collectanea Juridica, II, 415 ; 46 The Real Property Law. law theretofore in force and not repugnant to the repubhcan form of government. By a series of acts emanating from the newly sovereign State the seigniory and quit-rents annexed to the Crown were formally transferred to the political corporation, abstractly called the State.®" Thus in legal theory the socage tenure was not abrogated, but continued over all lands previously in tenure. Lands patented under the great seal of the State were, however, made allodial.^i This dual condition existed down to the Revised Statutes, when all lands were made allodial.®^ In legal theory the State was substituted for the Crown in all the latter's relations to land.®^ The legal consequence of the modified continuation of tenure, after the birth of the State, coupled with the constitutional adoption of the former common and statute law of the province,^ was to leave the former common law of real estates in force down to the Revised Statutes of 1830. Prior to 1830 the legislative reforms in the com- mon law had not been very radical, if we except the statutes abolish- ing primogeniture and regulating descents.®^ The acts turning es- tates tail into estates in fee simple^® had, it is true, abolished entails, but this was not regarded as a great reform, for entails might always be readily broken before those acts,®^ and they were not much used in New York, even while the province was under the Crown, except in the case of a few large grants of land, producing rent or return.** Neither the statutes abolishing entails and primogeniture, nor the political independence of the State, made material changes in the law of real property in New York. Even the quantity and the quality of estates in the new allodial lands were governed wholly by the former common law which the first Constitution of the State had sojourn. Prov. Conv. I, 554; i J. & Johns. 163; Jackson ex dem. v. Hart, V. 44, § 14, Laws of 1779; I Green- 12 id. 7T, 80; Beekman v. Schenectady leaf, 31 ; I R. S. 718, § 3- R. R. Co., 3 Pai. 45, 72. 51 2 J. & V. 67. 6* Const. 1777, § 35. 52 I R. S. 718, § 3; ef. art. I, Const. 65 Qf. Laws of 1782; i J. & V. 24S; of N. Y. now in operation; art. I, and see below, under art. IX, The § 12; infra, p. 78. Real Prop. Law. 53 Wendell v. The People, 8 Wend. oe id. supra. 182, 188 ; De Peyster v. Michael, 6 N. 67 See Wyche, Fines & Recoveries, Y. at p. 504; People V. Trinity Church, the first law book published in New 22 id. 44; Seneca Nation v. Christie, York. 126 id. 122; cf. as to later patents, 58 gee a devise in tail. Steadfast ex Jackson ex dem., etc. v. Ingraham, 4 dem., etc. v. Nicoll, 3 Joh/s. Cas. 18. / Introduction. 47 adopted as its own.^* As all the great English statutes, including- those concerning uses and wills, were also expressly readopted'^* and confirmed,®^ conveyancers were at liberty, until the adoption o£ the Revised Statutes, to continue to employ any conveyance pre- viously valid in colonial times.^^ As the distinction between courts of equity and courts of law was continued, trust estates were on the same footing as in England until the Revised Statutes altered the law. The Revised Statutes effected great changes in the old law of real property. They created a new learning and mark an epoch, but one never wholly disconnected from the past. To know what a statute accomplishes the lawyer must take into consideration the pre-existing law. The Real Property Law (Chap. 46, General Laws). The act which is the subject of this volume is in the main only a re-revision of Part II of the Revised Statutes of 1830. It makes few changes except in matters of form. Such changes in substance as are made are commented on at considerable length in the text of the following commentary on the various sections of the act, and need not be noticed at this point. It will suffice to point out that the Revised Statutes extirpated that remnant of the feudal law which, in the English system of real property, had survived the statute abolishing the military or feudal tenures.®^ Under the provisions of the Revised Statutes there may now be a total abeyance of seisin within the revised rule directed against a perpetuity.^ A contingent remainder need no longer depend for its validity on the regular ex- piration of a particular estate of freehold. ^^ A freehold estate may be limited by deed to commence in futuro;^^ a fee may be mounted on a fee, provided only that the limitation takes efifect within the statutory rule directed against a perpetuity.^^ Innovations so radical were destructive of nearly all the principles which formerly deter- mined the validity of legal limitations, and thus all limitations were consequently subjected to a uniform rule against a perpetuity. The Revised Statutes did not, however, alter the essential nature of property in land. The quantity and the quality of estates in pos- 59 Const, of 1777, § 35. 6*1 R. S. 724, § 24; "The Real ^ Id. supra. Property Law," § 40. , 81 In, Tones & Varick's Revision of eo j r s. 725, § 34; The Real Prop- "^787-9. erty Law, § 48. ^'^ Supra, pp. 33, 38. 66 I R. S, 724, § 24; The Real Prop- 88 12 Car. II, chap. 24. erty Law. § 40. 48 The Real Property Law. session remained as before f^ so the old rules relating to conditions and defeasance of estates were in the main unaffected by the pro- visions of the statutes. The form of the law was often changed without, however, affecting the substance. The Revised Statutes swept away the remnant of the socage tenure, and declared all lands ■^ to be allodial.^* The great object of the Revised Statutes, in the article "on the Creation and Division of Estates," was to subject, in future, all limitations of legal estates then possible to one system of rules and principles. The separate systems of law and equity were then in full force in New York, and in the natural order of things the re- visers dealt first with the universal proprietorship, or that cognizable in the courts of law. Prior to the Revised Statutes there were in force, in New York, three classes of rules relating to limitations of legal estates in allodial lands : ( I) Those relative to common-law conveyances; (II) those relating to uses; (III) those relating to devises. These' rules, by reason of their different origin, were not always consistent, and, therefore, the validity of a particular limita- tion might depend on the character of the instrument in which it was contained.®" The revisers intended to bring the rules relative to limitations of estates into harmony. They abolished the mode of conveying lands by feoffment with livery of seisin, and erected the former conveyance by bargain and sale and lease and release, into " grants " which took effect only from delivery.™ They, how- ever, revised the old Statute of Wills, thus preserving venia testandi, whereby estates in lands might continue to pass by devise.'^ But they made the new rules about future estates apply to both wills and grants alike. These were immense and comprehensive changes, and fertile of great results in modern law. The present writer has elsewhere ventured to make some observa- tions on the nature of the statutory declaration by the State of its own sovereign relations to lands, at the time when all the lands of the State were declared allodial.'^^ These statutory provisions, as 6T The Real Prop. Law, §§ 20, 55, ^ j r s. 738, article on Alienation infra. by Deed. 68 I R. S. 718, § 3, now Constitution, 7i 2 R. S. 56, 57, being chap. VI, art. I, § 12, infra. Part II, R. S., relating to Wilis, etc. 60 Revisers' note to § 7, i R. S. 722. ^2 j r g. 718, tit. i, art. i ; i R. S. 718, § I. Introduction. 49 stated above, were transferred to the Constitution^^ They preserved escheats to the State propter defectum sanguinis, and declare that " the people of this State in their right of sovereignty are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State. "^* Feudal tenures only were abol- ished.^^ In view of these provisions it is sometimes asked in what way estates in the allodial lands now differ from estates in lands held by tenure of free and common socage.'^" The answer is not easily made, but if we may venture on conjecture, one great dif- ference effected by the change relates to the interpretation of the Revised Statutes, for it was thus made the key of its own interpreta- tion, and the cases relating to tenure ceased to be relevant to a great extent. Method and Efiects of Refonns. This review of the development of the principles of conveyancing in England tends to show that the effort there was to evade feudalism without subverting the ancient law. The inconsistent rules mentioned were the result of this halting method of development. In New York we have carried on the statutory and legal reforms begun in England, but we have done so by adopting largely the rational principles formulated in the courts of equity, and by inculcating simplicity and uniformity in conveyancing. The Revised Statutes in particular — and the following act is little else than a re-enactment of the Revised Stat- utes — simply made the equitable principle the legal rule in all cases, and abolished the inconsistent rules at law. This was the main reform of that celebrated revision. If we glance back at the centuries involved in this gradual development of the principles of conveying landed property, we shall perceive that change to meet new conditions is progressive and essential, but that it should always be made cautiously and for imperative necessity ; otherwise, it may have to be undone. 73 Const, of 1846, art. I, l§ 10, 13, and 1894-5, art. 1; Saunders v. Hanes, and of 1894-95, art. i, §§ 11, 14. 44 N. Y. 353, 361. T* Id. supra. ''^ See commentary below on the ■^5 I R. S. 718, § 3 ; Consts. of 1846 provisions of the Constitution touch- ing allodial lands. 4 50 The Real Property Law. CHAPTER II. Law of Titles to Real Property in New York. The present law of real property in New York is largely the result of certain historic forces. In the early days of the partition, or settlements in North America, by Europeans, the territory along the Hudson River and its tributaries, as well as the westerly part of Long Island, then called New Netherland, was discovered and settled by the Dutch, who claimed its political dominion.^ In the year 1 62 1, a charter, or octroi, was granted by the. States General of Hol- land to its feudatory, the Dutch West India Company, which cor- poration until the year 1664 governed and colonized the country. The population was then about ten thousand persons, exclusive of the Indians. Many of these dwellers had grants of land from the company.^ Under the West India Company, the Dutch laws and institutions, in so far as necessary to a rude and sparsely settled country, were applied.^ In the year 1664, the English, acting pursuant to a patent from King Charles II of England to his brother, the Duke of York,* sub- jugated the Dutch in New Netherland and forcibly annexed the Country to the British Crown. The ostensible, but not real, reason for this aggression was that the Dutch had intruded on territory which was, by right of prior discovery and contiguous and sufficient occupation, English soil. But the Dutch capitulated only under "Articles of Surrender," which were adhered to, and have long played 1 The easterly end of Long Island York, contained in the Memorial His- was not Dutch territory. Town of tory of New York. Southampton v. Mecox Bay Oyster ^ Levy v. Levy, 33 N. Y. 97, 107 ; Co., 116 N. Y. I, 7. Dunham v. Williams, 37 id. 251; Van 2 The nature of the institutions, Giesen v. Bridgford, 83 N. Y. 348. laws and government of New Nether- * See this patent, liber i, N. Y. Pat- land are detailed in this writer's in- ents, p. 139; Doc. rel. to Col. History troduction to the Grolier edition of of New York, II, 29s ; Regents' Re- Bradford's New York Laws of 1694, port of the Boundaries of State of and again in chapters I and II of the New York, I, 10; and Appendix I, History of the Law of Real Property Fowler's History N. Y. Law Real in New York, and also in his Legal Prop, in New York; i Col. Laws of and Constitutional History of New N«w York, i. Introduction. 51 an important part in the jurisprudence of New York.'' By the treat}- of Breda, July 21-31, 1667, New ISTetherland was formally ceded to the British Crown in exchange for Surinam. For a time the Dutch dominion was at an end; but on July 30, 1673, the Dutch conquered New York and held it for fifteen months, so far as possible restoring their own laws and administering the government. On the conclu- sion of peace between England and the United Provinces, under the sixth article of the Treaty of Westminster, signed February 9-19, 1674, the Province was finally surrendered to the English.® The status of the Province in the law of nations was then that of a ceded,' if not a conquered, province. Up to this point in the history of New York, the lawyer who has occasion to investigate the early law of New York will find the following considerations most worthy of his attention: What was the nature of the rights guaranteed to the ancient Dutch inhabitants by the Articles of Surrender, and how long did they continue to affect the devolution of their interests in land ? In certain obscure aspects these are important legal questions.^ But we must consider first the law concerning the English admin- istration of the government of New York. This relates to two periods: (i) while the province was a proprietary government under the Duke of York;® (2) when this proprietary government came to an end by the death of King Charles II, and the accession of the Duke of York, the government became a provincial, or as it is more commonly said, a royal or Crown, colony.' It so continued down to the War of Independence, for at the English Revolution of 1688 New York, with the other Crown colonies, passed to the new sovereign, and ultimately to the House of Hanover as con- comitantia of the Crown.^** ^ See the articles, Appendix No. i, '' These points are discussed at large Vol. II, New York Revised Laws of in the writer's introduction to Brad- 1813; Fowler, Hist. Law Real Prop, ford's Laws of 1694; and in his His- 14, IS, 64; Humbert V. Trinity Church, tory of the Law of Real Property; 24 Wend. 587, 624; Canal Comrs. v. Mott v. Clayton, g App. Div. 181; The People, 5 Wend. 423, 446; Mott Smith v. City of Rochester, 92 N. Y. V. Clayton, 9 App. Div. 181 ; N. Y. C. 463, 482. & H. R. R. R. Co. V. Brockway B. Co., « I Black. Comm. log. 158 N. Y. 470, 472. * I Black. Comm. 109. * Dumont, Corps Diplomatique, VII, "* Chitty, Prerogatives of the 253. The seventh clause confirms the Crown, 205 ; Bogardus v. Trinity treaty of Breda. Church, 4 Sandf. Ch. 633, 726. 52 The Real Property Law. The Proprietary Government. The proprietary government under the Duke of York lasted substantially from the English conquest in 1664 to February 6, 1685, the date of the Duke of York's accession to the Crown as James II of England. By this accession his estate in the Province was merged in his Crown. ^' King Charles II made two patents or grants to the Duke of York, the first dated 12th of March, 1664,^^ and the second in 1674, after the second cession by the Dutch under the Treaty of Westminster. The second patent is in substantially the same language as the first.^^ The right of the Crown to make these grants could not be questioned by the con- temporary law.^* In any event, it is now too late to question them.i^ Originally the King was deemed seised of all lands beyond seas as his demesne lands and not as parts or parcel of the realm.^® Sub- sequently the theory changed and the King was regarded as seised jure corona. These patents to the Duke of York granted all the territory claimed by the Dutch, including that within the present boundaries of the State of New York. These patents were more than grants of territory, as they conferred on the lord-proprietor not only the seigniory but certain regalities and powers of government.^^ The Duke had all the regalities and subordinate powers of legislation which formerly belonged to the proprietors of counties palatine.** It is only necessary for present purposes to call the professional reader's attention to the more important propositions of law, con- nected with the patents and government of the Duke of York: (i) all the land was granted and to be held of the Crown, as of the King's Manor of East Greenwich*^ in the County of Kent in free 11 Comyn Dig. tit. Prerogative. i'^ Martin v. Waddell, 16 Peters, 367, 12 Supra, p. so. 412, 427 : Penn v. Lord Baltimore, i 13 Learning and Spicer's Grants, 41 ; Yes. Sr. 444 ; s. c, 2 White & Tudor, I Col. Laws of N. Y. 104. L. C. in Eq. 1047 ; Case of the County 1* See the writer's Introduction to Palatine of Wexford, Davies (Ir.) Grolier-Bradford's N. Y. Laws of 159. 1694, chapters I and 11 ; History Real 1* i Black. Comm. 109 ; Pownall, Prop, in N. Y., chap. I. Colonies, 55, 60; 4 Institutes, 20s; 16 Martin v. Waddell, 16 Peters, 367. Clarke, Colonial Law, 21. 1" Pownall on the Colonies, passim, 1^ As this manor is now extinct, see 1st London ed. ; Journal House of an account of it by this writer, 61 Alb. Commons, April 25, 1621 ; Chitty Pre- Law Journal, 165. rogatives, 205. Introduction. 53 and common socage and not in capite or by knight-service. This was an express introduction of this free tenure into the Province. After the Province came back again to the Crown by the Duke of York's accession and merger,^" the Statute 12 Charles II, chap. 24, expressly prevented the creation by the Crown of any other tenure than common socage.^^ Thus under the proprietary and under the Crown all lands newly patented were held of the Crown by the free and common socage tenure as reformed by the great Statute of 12 Charles II, chap. 24. The Duke Could not Create Manors. The Duke of York, being a subject, was within the Statute of Quia Emptores, and, as there was no non obstante clause in his patents,^^ was precluded from creating any new manors whereby tenure of the manor would be created. Yet numerous new manors were created during the proprietary government,^* and this illegality seems never to have been noticed before the end of the proprietary government. But after the English Revolution of 1688 a statute was soon enacted by the Legis- lature of New York confirming all prior manors and other grants.^* But the rule of law above noticed concerning the invalidity of new manors created by the Duke had no bearing upon certain ancient Dutch manors or " patroonships " existing prior to 1664, which were very properly recognized and confirmed by the Duke of York's agents, under the Articles of Surrender,^^ as such manors existed independently of the Statute of Quia Emptores; having been created wholly under the reformed feudal law of Holland.^^ Counties. Counties were first created in the Province of New York by act of the Legislature, passed in 1683^'' and re-enacted with ^ Supra, p. 51. 1777; Lowndes v. Huntington, 153 U. 21 Van Rensselaer v. Hays, 19 N. Y. S. i, 26 ; Robins v. Ackerly, 91 N. Y. at p. 73; De Lancey v. Piepgrass, 138 98, 104; Trustees of Brookhaven v. N. Y. 26, 35. Strong, 60 id. 56, 67; People v. Van 22 As there was in some other prov- Rensselaer, 9 N. Y. 291, 346 ; People inces. Penn v. Lord Baltimore, 2 v. Livingston, 8 Barb. 253; Trustees White & Tudor, L. C. in Eq. 1059, of East Hampton v. Vail, 151 N. Y. 1060. Sir Edward Northey, Doc. 463, 467. rel. to Col. Hist. N. Y., V, 370. ^ i R.. L. of 1813, Appendix No. i. 23 See De Lancey's Origin and His- 26 gee People v. Page, 39 App. Div. tory of New York Manors, passim, no, 114, and my introduction to Gro- 2* See N. Y, Laws of 1694 (Brad- lier-Bradford's N. Y. Laws of 1694, ford ed.), p. 6; i N. Y. Colonial chapter L Laws, 224; § 36, Constitution of 27 1 N. Y. Col. Laws, 121. 54 The Real Property Law. changes in 1691.^^ From time, to time the boundaries have been since changed, and many new counties created.^^ The Revised Stat- utes defined the boundaries of the counties then existing with great particularity.^* Town, City, and Corporate Charters granted under the Duke of York. The King had power to issue charters of incorporation,^^ and delegated by his patents the like power to the Duke of York, with other regali- ties. Under this power the NicoUs and the Dongan charters to the city of New York and many others were made, and they still con- tinue in force.^2 All such charters were confirmed both by the colonial act of 1691^^ and by the 36th section of the State Constitution of 1777, as well as by the subsequent constitutions.^* Subsequent charters may be found by reference to the first edition of the Revised Statutes,^^ and the Session Laws of this State. Common Law under the Duke of York. The question, what was the fundamental common law under the Duke of York, Dutch or Eng- lish, has created more discussion in the courts than the facts war- rant ; for with moderate industry which law actually governed is sus- ceptible of exact determination in connection with almost every litigated right of property. The confusion on this point arises from an attempt to account for the common law of England by Black- stone's general statement, that in conquered or ceded countries the common law of England is not in force until legislation supplies it, but that in countries acquired by discovery and occupation it is ipso facto in force.^® This statement generally corresponds to the presence or absence in acquired countries of a lex loci of English original, but its universality has many exceptions.''''^ The decisions of some of our courts, ignoring all the facts which demonstrate that the com- mon law of England was set in force in New York by legislative 28 Bradford N. Y. Laws of 1694, p. ** Vide supra and i N. Y. Col. Laws, 39; I N. Y. Col. Laws, 267. 224. 29 See my note 16 to Grolier-Brad- 34 Section 17, art. I, Const, of 1894. ford's N. Y. Laws of 1694; and 3 R. 353 r s_ ^gj^ ^eq. S. 481 (Ed. of 1829). 3« I Black. Comm. 108. 30 3 R. S. I. 37 Freeman v. Fairlie, i Moo. Ind. 31 1 Black. Comm. 272. App. 324 ; Campbell v. Hall, Cowper, 32 Vide infra and Matter of New at p. 212 ; Mayor, etc. v. Hart, 92 N. York Speedway, 60 App. Div. 122, 126 ; Y. 443, 450 ; Rose v. Clark, 8 Pai. Town of Southampton v. Mecox Bay 574, 579, 580; Humbert v. Trinity Oyster Co., 116 N. Y. at p. 5. Church, 24 Wend. 587, 624, 626. Introduction. 55 methods employed by the Crown, have adopted Blackstone's ex post facto account in its entirety, and have thought it necessary to account for the presence of the English common law by deciding that New York was to be accounted an English province by virtue of prior discovery and occupation by the English.^* Other cases, more authoritative, because less abstract, have virtually held that New York was to be regarded as acquired by England by virtue of conquest and cession for the purpose of applying the Dutch or the English common law.^® The same desired juridical result, i. e., the presence of the com- mon law of England, might have been otherwise reached by greater industry, for the fact is that English law was formally substituted by legislation for the ancient Dutch laws of the ceded territory of New Netherland*" in all but a few temporary instances guaranteed by the Articles of Surrender.*^ The common law of England was in all other cases expressly introduced in New York in 1664 by virtue- of clauses contained in the Duke of York's patents, and in subse- quent commissions and instructions to the royal governors from the Crown.*^ Hence, in this connection, a decision on the nature 38 Mortimer v. N. Y. El. R. R. Co., Town of Hempstead, iss N. Y. 297, 6 N. Y. Supp. 898; 57 N. Y. Superior 300; Bartow v. Draper, s Duer, 130, Ct. 599 ; Hine v. N. Y. El. R. R. Co., 142, 145 ; Overbagh v. Patrie, 8 Barb. 7 N. Y. Supp. 464; Martin v. Waddell, 41 ; Van Giesen v. Bridgford, r8 Hun, 16 Peters, 367, 409; Canal Comrs. v. 73, affd., 83 N. Y. 348; and see note The People (per the Chancellor), 5 to 17 Abb. N. C. 485, seq. Wend, at p. 445 ; Shively v. Bowlby, *" Journal of N. Y. Colonial As- 152 U. S. I, 14; Town of Southamp- sembly, p. 5. See arguments of Mr. ton V. Mecox Bay Oyster Co., 116 N. Riker in the year i8cg in Journeyman Y. I. Cordwainers' Case, Yates Select Cases, 39 Levy V. Levy, 33 N. Y. 97, 107 ; p. 196 ; Canal Appraisers v. The Peo- Dunham v. Williams, 37 id. 251 ; Smith pie, 17 Wend. p. 581 ; Humbert v. V. City of Rochester, 92 id. 463, 482; Trinity Church, 24 Wend, at p. 624; Penn v. Lord Baltimore, i Ves. Sr. Mayor, etc. v. Hart, 95 N. Y. 443, 450 ; 444, 451; Campbell v. Hall, Cowper, at Rose v. Clark, 8 Pai. at p. 580; Paige p. 211 ; Constantine v. Van Winkle, 6 v. Schenectady Railway Co., 178 N. Y. Hill, 177, 181 ; Canal Appraisers v. 102, no. People, 17 Wend. 571, 604, 609, 617; « Mott v. Clayton, 9 App. Div. 181. Mott V. Clayton, 9 App. Div. 181 ; *2 See Lord Mansfield in Campbell Story V. N. Y. El. R. R. Co., 3 Abb. v. Hall, Cowper, at p. 212; Mr. Riker N. C. 478, 489; Denton v. Jackson, 2 in Journeyman Cordwainers' Case, Johns. Ch. 317, 324; 2 Wend. 109; Yates Select Cases, p. 196; Stokes' Hopkins, 288; North Hempstead v. Colonies, 251. Gallagher, 21 Misc. 508; Lawrence v. 56 The Real Property Law. of the Crown's title to the territory of New Netherland is not neces- sary, if indeed a question of State is proper to be decided by judicatories, in the absence and without the consent of the real parties to so high a controversy. So futile would such a decision be that it is fair to presume that the courts have intended to decide not that England claimed New Netherland by virtue of discovery and prior occupation but that the common law of England obtained here on that theory. Yet in the face of the fact that the common law was put in force by express substitution and on an orderly plan of government, such a decision is equally futile and contradictory of the facts on record in the proper governmental offices and reposi- tories. In the Dongan Charter to the city of New York of 1686, the authorities while admitting that the prior Dutch government formally granted certain rights, carefully refrained from char- acterizing the character of the transfer of the government to the English. Such reticence was very commendable. It cannot be that any useful purpose is subserved after this great interval of time by an attempt to settle judicially the better title of England or Holland to be the first discoverers of New York ; espe- cially as the presence of English law and the disappearance of all but a small fragment of Dutch law may be accounted for in a different and more rational manner. Yet lawyers not infrequently make labored historical arguments to show that the Dutch had no right here,*^ a premiss from which they would deduce that the Dutch had no law here, a consequence which certainly does not follow;** for the legislation or law of a de facto government may much affect the rights of their citizens. Boundaries of the Duke of York's Patents. The territory, dry and sub- acqueous, and the islands embraced in the several patents included much more than that now contained in the State of New York. As the boundaries concern the State rather than private persons, a reference to a few authorities will suffice.*^ 43 Mortimer v. El. R. R. Co., 6 N. Y. portation Co., 35 N. Y. 352, 356 ; Siipp. 898 ; 57 N. Y. Superior Ct. 599 ; Martin v. Waddell, 16 Peters, 367 ; Hine v. Same, 7 N. Y. Supp. 464. Keyser v. Coe, 37 Conn. 597; Cor- ** Mott V. Clayton, 9 App. Div. 181 ; field v. Coryell, 4 Wash. C. C. 371 ; Dunham v. Williams, 37 N. Y. 251. Pea Patch Island Case, I Wall. Jr. *'^ Regents' Reports on the Bounda- C. C, Appendix II. ries of the State ; Mahler v. Trans- Introduction. 57 Grants of Land by the Duke of York. The Duke of York hekl his demesne of the Crown in free and common socage as stated in his patents. He could and did as owner of the soil make grants of the lands,*" not held by the ancient Dutch inhabitants, and these lands were held of the Crown sine media. *^ The grants were usually made by the Duke's governors and sealed, pursuant to his regulations and authority under seal f^ they were entirely effective to pass title to the soil,*^ although there was nothing to preclude their being made by the Duke himself. All such grants of the governors are indubitable sources of title to lands at the present day. The governors had the full and plenary authority granted to the Duke of York by the King's patents.^* Such grants were formally confirmed and ratified after the English Revolution of 1688." The Ancient Dutch Titles after 1664. The ancient Dutch inhabitants who had held their lands under Dutch ground briefs or transports before 1664 were, at least, until the Treaty of Westminster and the recession of New York to the English, protected in their estates by the Articles of Capitulation of 1664.^^ Whether these articles survived the recession and that treaty has been debated.^^ But the fact is that under the law of postliminy the articles survived the treaty, and without that they were republished by the Duke's agents, and consequently continued in force for property purposes.^ *6 See Fowler's Hist. Real^^tiip. in tution of 1777; Matter of N. Y. Speed- New York, chaps. I and II ; Marfin way, 60 App. Div. 122, 127. V. Waddell, 16 Peters, 367, 427. ^o^ge -Commission to Nicolls, *'' Chalmers' Col. Opins. 142, 143, Penna. Archives, V, 509 ; Doc. History 144, 149; Van Rensselaer v. Hays, ig of New York, I, 87; Greene's Pro- N. Y. 68 ; see Sir Edw. Northey, Doc. vincial Governor, 35 ; People v. Liv- rel. Col. Hist. N. Y., V, 370; Penn v. ingston, 8 Barb. 253; Brady v. Begun, Lord Baltimore, i Ves. Sr. 444. 36 id. 533. *8 These authorities were drawn up 5i Supra, p. 52. by counsel either to the Crown or to ^^ Supra, p. 50. the Duke, and were plenary and in ^^ Humbert v. Trinity Church, 24 excellent technical form. See Docu- Wend. 587, 624; Canal Comrs. v. mentary History of New York, I, 87; The People, 5 Wend. 423, 446. and infra, as to construction of grants. "4 Dqc. rel. Col. Hist. N. Y., Ill, *9 Trustees of Brookhaven v. 327; i N. Y. Col. Laws, 107; Mott v. Strong, 60 N. Y. 56 ; Mayor, etc. v. Clayton, 9 App. Div. 181 ; Smith v. Hart, 95 N. Y. 443, 450; § 37, Consti- City of Rochester, 92 N. Y. 463, 482; 58 The Real Property Law. But subsequently the lands held by the old Dutch settlers under Dutch ground briefs were confirmed or repatented, according to the Duke of York's Laws of 1664 and 1665, probably in order to be held of the Crown by the common socage tenure.®^ The method by which this was done may be readily ascertained by inspection of like documents.^^ After this lapse of time the presumption would be that the titles to all the ancient Dutch private lands were con- firmed : " Omnia praesumuntur rite esse acta donee probetur in contraria." When a new patent was taken out that is now con- trolling.^^ But as said in People v. Page^* an element of some importance in the construction of such patents is their prior Dutch origin. This we shall notice when we come to consider the decisions of our courts on these few survivals of Dutch law, which became a part of the law of the Province of New York and are still con- trolling as such. Duke's Laws. The main English laws of this remote period were embodied in the code called the Duke's Laws.^* But the Duke also called a legislative assembly which passed certain acts in the years 1683, 1684, 1685,^ the validity of which is disputed. Those who have occasion to rely on any of these ancient laws may acquaint themselves with the main contentions, litigations and authorities by having reference to this writer's other works where they are detailed at length.*^ The Eoyal Government. In February, 1685, the Duke of York be- came King and his estate in the Province merged in his Crown and passed with it.®^ Until independence the government was classed as N. Y. C. & H. R. R. Co. V. Brockway 8839 App. Div. at p. 114; and see B. Co., 158 N. Y. 470, 472. Dunham v. Williams, 37 N. Y. 251. 56 Amendments of 1666, Duke's eo See i N. Y. Col. Laws, pp. 6-100 ; Laws ; i Col. Laws, 93. Greene, Provincial Governor, 35. 66 Hoffman's Treatise Estate of City e<>i N. Y. Col. Laws, 111-178. of New York, II, 44, 46 ; Bogardus v. ei Fowler's Hist. Real Prop, in N. Trinity Church, 4 Sandf. Ch. 699; Y. 17, 21, and his Introduction to Jackson ex dem., etc. v. Murray, 7 Grolier-Bradford's N. Y. Laws of Johns. S- ^^94> 78 seg.; Trustees of Brookhaven 67 Hinckel v. Stevens, 165 N. Y. 171 ; v. Strong, 60 N. Y. 56, 68. Paige v. Schenectady Railway Co., 84 62 Supra, p. 52. App. Div. 91 ; 178 N. Y. 102. Introduction. 59 a " royal governmeiit."^^ The constitution of such colonial govern- ment was found in the common law and the King's commissions and instructions to his governors.^'* The governor, in short, repre- sented the Crown as locum tenens, and his powers, functions and liabilities were well defined.®'^ Land Grants and Patents after 1685. The King's right to grant Crown lands cannot be questioned.^® The governor was authorized by the Crown, with the consent of the council, to make grants of land, belonging to the Crown, reserving quit rents to the Crown."^ The grants are themselves regarded as plenary evidence of the governor's authority to make the grant in the form in which it was made.®^ Such grants are matters of public record and do not re- quire signature to render them valid,®* and even sealing and other preliminaries will be presumed.™ After the English Revolution of 1688 and the accession of William and Mary all former grants under the Stuarts were confirmed by act of the local assembly.'^* By the doctrine of the common law the King was the lord para- mount of all lands, and in England all land was either in the hands of the Sovereign or else held of him''^ — no land was allodial. With the common law this theory of the royal supremacy came to America, 8*1 Black Comm. 109; Martin v. tion of 1777; and see same principle Waddell, 16 Peters, at p. 427. as to grants from Spanish governors, **Lord Mansfield, Campbell v. Hall, United States v. Arredondo, 6 Peters, Cowper, at p. 212. 691, 728; cf. Florida v. Furman, 180 '"' See Greene Provincial Governor, U. S. 402, 431. passim; i Black Comm. 109; and see ^9 gog^rdus v. Trinity Church, 4 Chitty, Prerogatives of the Crown, Sandf. Ch. 633 ; People v. Livingston, passim; Stokes on the Colonies; Pow- 8 Barb. 253; Brady v. Begun, 36 id. nail. Colonies, for particular points. 533; McKinnon v. Bliss, 31 id. 180, *8 Mackinnon v. Barnes, 66 Barb, affd., 2i N. Y. 206. 91 ; United States v. Arredondo, 6 TO Williams v. Sheldon, 10 Wend. Peters, 691, 728; Martin v. Waddell, 654. 16 Peters, 367, 427. Ti Supra, p. 57; Bradford's N. Y. *'' See Commission to Governor Laws of 1694, p. 6 ; i N. Y. Col. Laws, Hunter of New York; People v. 224; Const, of 1777, § 36; Lowndes v. Schermerhorn, 19 Barb. 541. Huntington, 153 U. S. i, 26; Robins 88 Strother v. Lucas, 12 Wheat. 410 ; v. Ackerly, 91 N. Y. 98, 104 ; Trustees People V. Van Rensselaer, 9 N. Y. 291, of Brookhaven v. Strong, 60 id. 56, 67; 320; Bogardus v. Trinity Church, 4 People v. Van Rensselaer, 9 N. Y. Sandf. Ch. 633 ; People v. Livingston, 291, 346. 8 Barb. 253 ; DeLancey v. Piepgras, 72 Challis R. P. 4. 138 N. Y. 26, 42; § 36, Constitu- 60 The Real Property Law. and the unoccupied land became virtually Crown land, while the occupied lands, where patented, were held of the Crown by the reformed free and common socage tenure.'^ Manors after 1685. After the Duke of York became King, as King he and his successors had power, notwithstanding the Statute of Quia Emptores, to create manors in Crown lands not in tenure be- fore 18 Edw. I;''* although the tenants of such manors held of the lord of the manor by suit and serviced® We have stated above that the Province of New York at the English Revolution of 1688 devolved with the Crown and went with it as concomitant ia. The Permanent Legislative Assembly after 1691. In the reign of William and Mary the Constitution of the Province assumed definite form, and by the instructions of the Crown a legislative assembly was granted,''® which in its own sphere of legislative action was as effective as Parliament to make laws, and it could not be revoked." The Crown possessed a veto power over such laws, but until the acts of assembly were confirmed they were efJective, being called " probationary " or " temporary."^® The commissions of the gov- ernors provided that such acts were to be transmitted to England, and they were only to be void when disapproved by the Crown.™ Thus the Crown might override the action of the governor who had assented to the act as a constituent part of the legislative assembly. So it is apparent that the burden of proving that an act of assembly was disallowed by the Crown is on the person asserting it, although after the year 1694 the public acts were generally printed;^ there was, with the exception of the Baskett edition of such laws, no great effort to show what acts were allowed or disallowed by the T3 Van Rensselaer v. Hays, 19 N. Y. Strong, 60 N. Y. 56, 70 ; Bogardus v. 68, 73. Trinity Church, 4 Sandf. Ch. 633. T* Van Rensselaer v. Hays, 19 N. Y. ™ Documents rel. Col. Hist, of N. 68, 73. Y., HI, 369, 624. T5 Verschoyle v. Perkins, 13 Ir. Eq. so A full account of the various edi- 72, 82; Delacherois v. Delacherois, 11 tions is given in the writer's Introduc- Ho. L. Cas. p. 79; Fowler, Hist. Law tion to the Grolier-Bradford's N. Y. Real Prop, in N. Y., pp. 29, 30. Laws of 1694, and in his Hist. Law TC Doc. rel. Col. Hist. N. Y., IH, 623. Real Property in New York, pp. 61, T7 Chitty, Prerog. 33. 62, 63, It may be found useful in any 78 People V. Trinity Church, 22 N. carefully prepared case involving these Y. 44; Trustees of Brookhaven v. old laws. Introduction. 61 Crown. But this evidence is obtainable for a consideration in the public record office at London. The acts have now been repub- lished by authority of the State,*' but the same evidence is lacking as before.*^ It should have been supplied from London in the latest official edition by the State. In the last edition of the Brad- ford Laws of 1694 the writer supplied some of this information.®* Although these acts have been all now repealed^* they are not di- vested of importance, for rights acquired under them remain vested rights and are not abrogated.*^' Law of the Royal Province of New York. The law of the Province of New York, from the accession of James II in 1685 down to the War of Independence, consisted of the acts of the New York as- sembly, such of the laws of the Duke of York's government as were not inconsistent with later legislation, and such parts of the common law of England as were not repugnant to local conditions. This body of law also appears to have contained a substratum of ancient Dutch common law, as we find it occasionally applied by the courts. But as regards a claim of Dutch law, we should remember that the presumption always is tliat the English common law con- trols since 1664. In addition to this, certain ancient statutes of Eng- land were regarded as in force as well as those later acts of the English Parliament expressly naming the Province of New York. It would require a volume to exhaust the discussion on this single subject, and it will suffice to point out here to the professional reader some few sources of general information on the various elements of so confused a corpus juris. The Acts of the Assembly of the Province of New York, (i) These acts may be found either in the latest edition by the State,*® or else in the various old editions of the session laws, or in manuscript; also in the several revisions by the colonial lawyers, Livingston and Smith*^ and Van Schaack.®* The acts of 1774 and 1775 were separately published by the State in i888.*» (2) The laws under the Duke of *i Chap. I2S, Laws of 1891. 85 Bogardus v. Trinity Church, 4 82 The Colonial Laws of New York, Sandf. Ch. 633. edition of 1894. se Albany, 1894. 83 Grolier-Bradford's Laws of 1694, *'' New York, 1752. Appendix I, IL 88 New York, 1773. 84 Chap. 21, Laws 1828, 1829, § 4 ; 89 14th and isth Geo. Ill, Albany, § 30, Statutory Construction Law, by James B. Lyon. chap. 677, Laws of 1892. 62 The Real Property Law. York consisted of the code called the " Duke's Laws," with additions made in the Court of Assizes of that period,®" and finally of the acts of the Dongan Assembly of 1683, 1684, 1685,®^ which now have been held valid as statutes,®^ notwithstanding a resolution of the lower house of assembly in 1691 to the contrary.** The EngUsh Common Law in the Province. By direction of the Crown contained in both of the patents to the Duke of York,** the laws of New York were not to be contrary to the laws, statutes and government of England.*^ This, in effect, served to introduce the common law into New York,*^ except in so far as the Roman Dutch law was reserved to the Dutch inhabitants by the Articles of Capitulation. But as there was a reservation in the patents to the effect that such law was to be " as near as conveniently may be " to the laws of England, the judiciary of the Province (who were the media of declaring the law)*^ adopted or rejected certain institutes of the common law of England.*^ Unfortunately as yet the decisions of the colonial courts of New York, though exhibiting a wealth of valuable material and learning, remain unreported. But the uncertainty as to what portions of the common law were so re- jected is reflected in later decisions.** The presumption is always in favor of the common law of England, as the burden of the assertion 90 I N. Y. Col. Laws, 6-1 10. of New York v. Hart, 95 N. Y. 443, 91 2 N. Y. Col. Laws, pp. 111-177. 450; Paige v. Schenectady Railway 82 Trustees of Brookhaven v. Co., 178 N. Y. 102, no. Strong, 60 N. Y. 56, 68. 9^ Matter of Steinway, 159 N. Y. 93 Journ. Leg. Assembly, April 24, 250, 256. i6gi. The effect of this resolution, 98 Canal Appraisers v. The People, with the authorities, is given in the 17 Wend, at p. 617. writer's Hist. Real Prop, in N. Y., 58 99 Morgan v. King, 30 Barb. 14; seq. and in his Introduction to the reversed on another point, 35 N. Y. Grolier-Bradford's N. Y. Laws of 458; Hooker v. Cummings, 20 Johns. 1694. 90, at p. 100; Williams v. Williams, 8 9* Supra, pp. so, 57. N. Y. 525, 541 ; Hill v. Supervisors, 12 95 Journ. of N. Y. Assembly, p. 5. N. Y. 52, 57 ; Cutting v. Cutting, 86 See argument of Mr. Riker in the N. Y. 522, 529; De Ruyter v. Trus- year 1809, Yates Select Cases, p. 196. tees of St. Peter's Church, 3 Barb. Ch. 96 Canal Appraisers v. The People, 119, 122; M. A. Baptist Church v. 17 Wend, at p. 581 ; Humbert v. Trin- Baptist Church in O Street, 46 N. Y. ity Church, 24 Wend, at p. 624; 131, 142. See early arguments of Stokes, Colonies, 30 ; Rose v. Clark, 8 counsel, with authorities on this point, Pai. at p. 580; Hinckel v. Stevens, in Journeyman Cordwainers' Case, 165 N. Y. 171, 175 ; Mayor, etc.. City Yates' Select Cases. Introduction. 63 is on him who denies the common law of England to be in force here;^ or that it is suited to local conditions and therefore to be rejected? Very ancient statutes of England, enacted before the time of " legal memory," which, it will be remembered, was fixed by stat- ute* as the first year of the reign of King Richard I, are regarded as part of the common law of England, or the lex non scripta* The leges scriptw, or statutes proper, begin with the reign of Richard I. The Statutes of England in Force in the Province. What statutes of England were extended to New York and acted on before inde- pendence was doubtful, and the uncertainty was much complained of by colonial lawyers.' But after independence Messrs. Jones & Varick revised all such statutes and the State Legislature gave a sort of sanction to their interpretation by re-enacting them as laws of this State.* They were generally those statutes declaratory of the common law and enacted before New York had a Legislature of its own;^ although certain of the more ancient statutes were re- garded as part of the common law.^ The Survivals of the Roman Dutch Law. By virtue of the Articles of Capitulation of 1664® (which were binding according to the laws of England) certain portions of the Dutch law of New Netherland remained in force^" as affecting particular estates patented under the ancient Dutch government. As part of the colonial law they 1 Canal Comrs. v. The People, 5 « yide infra, et Jackson v. Schutz, Wend, at p. 446; Paige v, Schenec- 18 Johns. 174, 186. tady Railway Co., 178 N. Y. 102, no. ''Those who are curious on this 2 Hooker v. Cummings, 20 Johns, point may consult the authorities re- at p. 100; Coihrs. of Canal Fund v. f erred to in the writer's Hist, of the Kempshall, 26 Wend. 404, 417; cf. Law of Real Prop, in New York, Parker v. Foote, 19 id. at p. 318; pp. 54, SS, and his Introduction to Journeyman Cordwainers' Case, Yates, Grolier-Bradford's 17 N. Y. Laws of Select Cases, in arguendo, at p. 193. 1694, P- xcvi seq. 3 West, I, chap. 39. ® Van Rensselaer v. Hays, 19 N. Y. *HaIe, Hist. Com. Law, p. 4 (6th 68, 73; Bogardus v. Trinity Church, 4 ed.). Pai. Ch. 178, 198; M. A. Baptist 8 Smith, Hist, of New York (Lon- Church v. Baptist Church in O Street, don ed. of 1757), p. 243; Yates, Select 46 N. Y. 131, 141. Cases, at p. 139 ; M. A. Baptist Church ^ Supra, p. 50. v. Baptist Church in O Street, 46 N. 10 Mott v. Clayton, 9 App. Div. 181 ; Y. at p. 141. Smith v. City of Rochester, 92 N. Y. 463, 482. 64 The Real Property Law. were adopted by the State Constitution. So far as disclosed by the decisions, these portions of Dutch law relate to the following subjects: (i) The rights of ancient abutters on ancient public roads exist- ing before 1664. The rights of such persons do not give them a presumptive title to the centre of the highway as at common law, as the fee is in the State or its grantee as successor to the Crown.^^ (2) The rights of abutters on streets since cut through lands held originally under Dutch transports in organized Dutch communities. The late Judge Hoffman regarded the streets, created since 1664 through lands anciently patented by Dutch ground briefs or trans- ports, as governed by a like law just stated above.^^ But this may be regarded as contrary to custom and doubtful, for new private powers and rights of a sovereign are usually controlled by his own public law, not by the law of his predecessor.^^ It would also seem to depend to some extent on the confirmation of the ancient Dutch patents whereby the lands became socage lands at common law and consequently governed by that law only in resj>ect of such new streets.^* (3) Rights of proprietors under Dutch patents, bordering on certain navigable streams above tide water.^^ (4) Rights, powers and title to property of ancient towns, incor- porated or existing under the Dutch government before the year 1 664.1" (5) Dutch charters or grants must be expounded by the law of New Netherland.i^ 11 Dunham v. Williams, 37 N. Y. 1* Hinckel v. Stevens, 165 N. Y. 171, 251 ; Mott V. Clayton, 9 App. Div. 181 ; 175 ; Paige v. Schenectady Railway Bartow v. Draper, 5 Duer, 130; Smith Co., 178 N. Y. 102. V. City of Rochester, 92 N. Y. at is Smith v. City o'f Rochester, 92 p. 482 ; Story v. El. R. R. Co., 3 Abb. N. Y. 463, 482, and cases there cited ; N. C. 478, 489; Graham v. Stern, 51 and see, generally, Hist. Law Real App. Div. 406, 408. Cf. Paige v. Prop, in New York, pp. 67, 68. Schenectady Railway Co., 84 App. Div. la Denton v. Jackson, 2 Johns. Ch. 91, 178 N. Y. 102, no. 317, 324; S. C, 2 Wend. 109; Hopkins, 12 Bartow v. Draper, s Duer, 130, 288; North Hempstead v. Gallagher, 142; Hoffman's Treatise on Estate of 21 Misc. 508; Lawrence v. Town of Corporation of City of New York, I, Hempstead, 155 N. Y. 297; The Mayor 312. v. Hart, 16 Hun, at p. 382. 12 See Shiveley v. Bowlby, 152 U. S. 17 Per Allen, Canal Comrs. v. I, 47. People, s Wend, at p. 453 ; People v. Introduction. 65 Effect of Independence and the Revolution. The outbreak of actual hos- tilities on April 19, 1775, caused the government of New York to be carried on for a time by revolutionary committees, congresses and conventions.^* On the formation of a State government and the adoption of a Constitution on April 20th, 1777, the present law of New York assumed definite form and shape. ^^ By section 35 of the Constitution, the statute and common law of the former colony of New York, as it existed on the 19th of April, 1775 (the date of the battle of Lexington), was adopted and perpetuated. The resolutions and resolves of the revolutionary congresses and conventions were also adopted and ratified. This served to incorporate or translate the old law of New York into the new State,^** provided it was not opposed to the institutions of the new government.^^ Section 36 of the State Constitution of 1777 virtually confirmed all patents of land and charters of incorporation made by the King or by persons ecting under his authority, prior to the 14th of October, 1775, and invalidated all made thereafter. Subsequent Constitutions of the State have always contained a similar pro- vision.^^ The effect of these provisions has been to confirm and strengthen all grants or charters made prior to October 14, 1775.^^ The precise effect of the Revolution upon the status of the several colonies, and what portions of the subverted sovereignty became vested in the people of one colony, and what portion in all the people of all the colonies, are too subtle questions to be debated here. It will suffice to point out that all local and non-imperial preroga- tives of the Crown passed to the People of the State in their political capacity and were formally declared vested in them.^* This is es- Page, 39 App. Div. at p. 114; Dunham Wend, at p. 452; Sargent v. Board of V. Williams, 37 N. Y. 251, and cases Education, 177 N. Y. 317, 323. generally, supra; cf. Hinckel v. ^^ See the section itself in extenso, Stevens, 165 N. Y. 171, 175. and Shayne v. N. Y. Evening Post, 18 See chap. IV, Hist. Law Real 168 N. Y. 70, 75. Prop, in New York. 22 Const, of 1777, § xxxvi ; Const. 19 Jackson v. White, 20 Johns. 313. of 1821-22, art. VII, § 14; Const, of 20 Williams v. Williams, 8 N. Y. 1846, art. I, § 18; Const, of 1894, art. 525, S4I ; Sage V. The Mayor, 134 id. I, § 17. 61, 82; Smith V. City of Rochester, 23 People v. Clarke, 10 Barb. 120; 92 id. at p. 480; Commissioners v. Sage v. Mayor, 154 N. Y. 61, 82. Kempshall, 26 Wend, at p. 417 ; Van 2* Rockefeller v. Lamora, 85 App. Rensselaer v. Hays, 19 N. Y. 68, 73 ; Div. 254, 259. Canal Comrs. v. The People, S 5 66 The Real Property Law. pecially true of the royal rights over the unsettled lands within the boundaries of any one colony.^^ The imperial prerogatives, or those formerly relating to the empire, wrere ultimately declared to belong to the Federal or General government, representing the people of all the colonies as a political unit. The change of sovereignty, caused by independence, did not affect the private, or the vested, rights of individuals,^® unless their propierty was confiscated as an act of war.^^ Revolutions, it has been remarked, make little change even in the outward forms of prior institutions, although they may sow the seeds of immense and com- prehensive change.^* Prior titles of citizens to lands, patented be- fore independence, remained the same after, as before, the War of Independence.^® The lord paramount alone was exchanged for the political abstraction called the " State."^** Who were at first such citizens of the United States has been considered at large with reference ttf the authorities on the disabilities of aliens in another place.** Treaties. By article VI of the definitive Treaty of Peace with England in 1783 further confiscations of property were to cease, although the prior confiscations were not thereby affected or nullified. ^^ By article IX of the Treaty of November 19, 1794, it was provided that the citizens of England then seised of lands in America, or vice versa, might continue to hold them and grant, sell or devise the same to whom they pleased without the penalties or forfeitures of alienage. In other words, such lands were taken out of the operation of the general law by treaty^* until the title again came to citizens. The Federal Constitution makes all treaties over- ride the law of any particular State** and their violation by a State presents a Federal question for the Federal courts. 25 Vide infra. 613, 621 ; Kelly v. Harrison, 2 Johns. 2s Kelly V. Harrison, 2 Johns. Cas. Cas. 29. 29, 31 ; Jackson v. Lunn, 3 id. 109, iii ; ^^ Vide infra, p. 67. Orser v. Hoag, 3 Hill, 79, 81. 3i The Real Prop. Law, § 2, infra. 27 See Ames' " Sales of Property by *2 McGregor v. Comstock, 16 Barb, the Commissioners of Forfeitures," 427; affd., 17 N. Y. 162. and chap. 25, Laws of 1779. ** Orser v. Hoag, 3 Hill, 79 ; Munro 28 Introduction to Ortolan, Rom. v. Merchant, 28 N. Y. 9 ; People v. Law. Snyder, 41 N. Y. 397. 29 Mcllvaine v. Coxe's Lessee, 4 34 Const, of U. S., art. VI, § 2. Cranch, 209 ; Peck v. Young, 26 Wend. Introduction. 67 Effect of Federal Constitution. The ratification of the Federal Con- stitution in 1788 subordinated the States in the sphere of action marked out for the Federal government, while at the same time it added protection to the property of citizens of the United States by the provision " that no State shall pass any law impairing the obligations of contracts." ^^ The Fourteenth Amendment in 1865 has further reinforced such Federal protection by prohibiting a State from depriving any person of life, liberty, or property without due process of law, and from the denial of equal protection of its laws.^^ Tenure of Lands after Independence. As prior to the American Revo- lution all lands were held of the Crown by tenure in free and com- mon socage,^^ the first step of the Revolutionary Convention was to make the quit-rents due to the Crown due to the Convention or to such future government as was thereafter established.^^ The first Constitution adopted these " resolves " of this Convention.^® Sub- sequently in 1779 a formal act was passed whereby it was declared that the absolute property of all lands and rents formerly due to the Crown was vested in the People of the State, in whom the sovereignty and seigniory were united and vested.*" This was a formal declaration of the transfer of the royal seigniory over socage lands to the State.*^ This act of 1779 was the precursor of several other acts to the same effect*^ oftentimes very much misunderstood when discussed in connection with cases of eminent domain, to which it has no legal relation. These acts neither increased nor diminished tlie authority of the State over lands possessed by citi- zens of the United States. Quit-Rents. The quit-rents due to the Crown were formally de- clared- to be in the State.*^ Ultimately they were commuted and ^ § 10, art. I, Const, of U. S. on another point overruled, however, 36 § I, amendment XIV. in 19 N. Y. 68, 75. ^"i Supra, pp. 43, 52. 42 j j. & v. 44, § 14; i R. S. 718, *8 Journ. Prov. Convention, I, 554. § i; transferred in 1846 to the Consti- ^^ Supra, p. 65. tution, § 11, art. I; Const, of 1894, *** § 14, chap. 25, Laws of 1779. § 10, art. I. *l De Peyster v. Michael, 6 N. Y. *3 " Resolve," Prov. Conven. Journ., 467, 504. This last-mentioned case was I, 554 ; i J. & V. 44, § 14 ; De Peyster V. Michael, 6 N. Y. 503. 68 The Real Property Law. extinguished.** The Statute of Limitations began to run against quit-rents on January i, 1820.*^ Statutes of this State. In 1782 estates in fee tail were turned into estates in fee simple, and primogeniture was abolished as a rule of descents.** In 1787 lands granted under the great seal of the State were first made allodial.*'' The lands patented prior to* 1787 re- mained in tenure until the Revised Statutes abolished tenure. In 1786 the Legislature determined to put an end to the incon- sistency which, as stated above, attended the application of the statutes of England to New York,*^ and to revise all the English statutes adopted by the thirty-fifth section of the Constitution of 1777, re-enact them and then repeal their prototypes.*® This re- vision of the English statutes accordingly was made^" and then the Legislature declared that thereafter none of the statutes of Great Britain or England should operate or be considered as laws.^^ The laws thus revised were not new laws but the old statutes of Eng- land, and so far as possible received the same interpretation.^^ The statutes passed by the Assembly of the Province of New York were not much revised by Jones and Varick; nor were they repealed until about the time of the Revised Statutes.^* The statutes of England having been revised and re-enacted, as above stated, the second Constitution of the State in its declaration of the fundamental law of the State omitted any further reference to the statutes of England, simply retaining in substance the common and statute law of the colony as it stood April 20, 1777, and not since repealed or altered and the subsequent legislation of the State."* Revised Statutes. Under the second State Constitution was made and enacted that drastic and comprehensive revision of the laws of ** I J. & V. 250; 2 R. S. I7S ; chap. "i Chap. 46, Laws of 1788; 2 J. & V. 23, Laws of 1786; I Webster's Laws, 282; Levy v. Levy, 6 Peters, 102, no; 607, § 6 ; chap. 33, Laws of 1798 ; chap. § 30, Statutory Construction Law, 222, Laws of 1819; De Lancey v. chap. 677, Laws of 1892. Piepgras, 138 N. Y. 40, 41. S2 Van Rensselaer v. Hays, 19 N. *" Kent's City Charter, note AAA. Y. at p. 74 ; Corning v. McCullough, *6Chap. 2, Laws of 1782, revised in i N. Y. at p. 64; Jackson v. Schutz, 1786 ; I J. & V. 24s. 18 Johns, at p. 186 ; People v. Clarke, « 2 J. & V. 67, § 6. 9 N. Y. 349, 362 ; 4 Kent, Comm. 494. *8 Supra, p. 63. '^^ Vide infra. « Chap. 3S, Laws of 1786; I J. & V. »« Const, of 1821^2, art. VIII, § 13. 281. So the Constitution of 1894, art. I, 80 By Jones & Varick. S 16. Introduction. 69 New York by revisers designated in 1824, 1825, 1827 and 1828. The portion of the Revised Statutes relating to real estate took effect January i, 1830.^ By the general repealing act of 1828, it was provided that thereafter no statute passed by the late colony of New York should be regarded as a law of this State.^® Neverthe- less, the Constitution of 1894, following that of 1846, in its declara- tion of the fundamental law, did not omit a reference to the colonial legislation, as it might properly have done, it having been all repealed.'^'' Tenure Abolished and Lands Made Allodial. Although lands, newly patented under the great seal of the State, had been made allodial in 1787,''* the lands once held under the socage tenure of the Crown remained in legal theory holden by the same tenure of the State, as successor to the Crown.^® The Revised Statutes abolished tenure and made all lands allodial.*" The difference in property rights before and after such abolition was, however, so slight as to be inconsequential in legal theory when the right to distrain for rent was held to be independent of tenure.*" Constitution of 1894. The existing Constitution of the State in its declaration of the fundamental law of the State makes it to consist in substance (i) of the unrepealed common and statute law of the colony as it stood on April 19, 1775, and (2) of the unrepealed resolutions of the Congress, and convention of the State in force April 20, 1777, (3) of existing acts of the State Legislature.*^ As all the acts of the Colonial Legislature were repealed in 1828,** and all the " resolves " of the Congress and the Convention of the State were repealed in 1892,*^ the Constitution of 1894 might have more accurately declared the future law of the State to consist of (i) the unrepealed common law of the colony as it stood on April 19, 1775, and (2) of existing statutes of the State. This declara- tion would have had no adverse effect on rights vested vmder such 5" See for history of revision, chap. 59 gee chap. IV. of my History of V, Fowler's Hist. Law Real Prop, in the Law of Real Property in New N. Y. York for details of this change. 66 Chap. 21, Laws of 1828-29, § 4; *<> i R. S. 718, §§ 3, 4- § 30, Stat. Constr. Law, chap. 677, *i Const, of 1894, art. I, § 16. Laws of 1892. ^'^ Supra, p. 69. "T Vide art. I, § 16. ^ i 30, chap. 677, Laws of 1892. 68 Supra, p. 46. 70 The Real Property Law. acts before their repeal, for a repeal of statutes does not destroy rights vested under them.®* All land grants by the Crown, subsequent to the 14th October, 1775. were again declared null and void by the Constitution of 1894, but saving all prior grants from the same authority.*^ Titles to Land in This State. From what has been said it is apparent that titles to lands in this State may emanate from any one of three original sources: (i) the primitive or ancient Dutch government of New Netherland.66 (2) The Crown of England."^ (3) The State of New York.*^ French grants to the disputed boundary lands are not recognized as valid sources of title.** Titles to Lands under Water in this State. The Crown of England be- came vested with title to all lands under tide waters in New York not previously granted by the Dutch;'"* and the State succeeded to the rights of the Crown upon the overthrow of the royal govern- ment.''^ The riparian proprietor prima facie only went to high- water mark,''* and the Crown could and did grant the lands between high and low- water marks to other persons or corporations subject to the jus publicum.''^ The subject of riparian and littoral rights is outlined in another place.''* 6* Dwarris on Statutes, 155. ham, 4 Johns. 163 ; Jackson ex dem., 6* § 17, art. I, Const, of 1894. etc. v. Waters, 12 id. 365. «8 Denton v. Jackson, 2 Johns. Ch. 70 Mahler v. Transportation Co., 35 320; People V. Clarke, 10 Barb. 120, N. Y. 352, 356; Langdon v. Mayor, 141 ; Dunham v. Williams, 37 N. Y. etc., 93 id. 129. And see Waters, p. 88, 251 ; Smith V. City of Rochester, 92 infra. id. 463, 482 ; Beekman V. Saratoga, etc., ''i Ibid, supra; Knickerbocker Ice R. R. Co., 3 Paige, 45, 66. Co. v. Shultz, 116 N. Y. 382. «7 Wendell v. People, 8 Wend. 183 ; T2 Trustees of Brookhaven v. People V. Livingston, 8 Barb. 253, 276 ; Strong, 60 N. Y. 56, 65. And this is McKinnon v. Bliss, 21 N. Y. 206; so even in manor grants, De Lancey People V. Trinity Church, 22 id. v. Piepgras, 138 N. Y. 26; cf. Moore 44, 46; Mitchel V. The United States, on Foreshore (3d ed.), pp. 542, 555, 9 Pet. p. 478; Seneca Nation v. Chris- 6g6. tie, 126 N. Y. 122 ; La Frambois v. ''3 Matter of N. Y. Speedway, 60 Jackson, 8 Cow. at p. 599. App. Div. 122, 126, and cases there 68 The People v. Trinity Church, 22 cited; Coxe v. State, 144 N. Y. 396, N. Y. 44, 46. 407. See this subject discussed under «» Jackson ex dem., etc. v. Tngra- section i, The Real Prop. Law, infra. ''^ Infra, p. 88, et seq. Introduction. 71 Charters of the City of New York. The Duke of York by his governor, Nicolls, revoked the former Dutch government of the city of New York by schout, burgomasters and schepens, and on 12th June, 1665, created the inhabitants of Manhattan Island a body politic, under a mayor, alderman and sheriff.''® In 1686, Dongan, governor under King James II (the former Duke of York having acceded in February, 1685, to the throne under that title), granted a second and formal charter of the English type,'® resembling the ancient charter of the city of Norwich, in England. Both the Nicolls and the Dongan charters remain still the basis of property rights of the corporation," having been frequently con- firmed by subsequent acts,'* charters and even by constitutional guaranties.''^ The present charter of Greater New York furnishes no exception to this custom of ratifying the Nicolls and the Dongan charters.®* It being beyond the scope of this treatise to discuss particular municipal charters, it may suffice to refer the reader to some of the authors who have treated the genesis, the form, or the law of the various charters and property rights of the ancient city of New York.«i Ducal or Royal Charter Grants to Towns, etc., Confirmed after Independence. Many charters to ancient towns and villages were granted either 'S See this charter in Hoffman's see Hoffman's Estate and Rights of Estate and Rights of the Corporation the Corporation, and Montgomerie of the City of New York. Charter, with notes by Chancellor ''s This charter is set out at large in Kent ; for later laws see Hoffman's the Montgomerie Charter of 1730. " Digest, Charter, Statutes and Ordi- See Kent, City Charter and notes. nances Relating to the City of New ''"' Matter of N. Y. Speedway, 60 York " up to 1865 ; Pirsson's Dutch App. Div. 122, 127. Grants, Harlem Patents and Tidal T8 N. Y. Laws of 1694 (p. 6 Brad- Creeks ; Girard's Title of the Corpo- ford ed.) ; i N. Y. Col. Laws, 224, ration to Streets, Wharves, Parks and § 1617, chap. 378, Laws of 1897. Ferries. The various charters of the '9 § 17, art. I, Const, of 1894. city are described in the writer's *o § 1617, chap. 378, Laws of 1897. " Legal and Constitutional History of 81 There is a most valuable and sug- New York," contributed as chapter gestive article on the genesis of th>, XIV to the Memorial History of the city charter by Prof. Jameson (8 City of New York, and in note 18 to Magazine Amer. Hist. 315, 598), and the Grolier-Bradford's N. Y. Laws of for the early acts founding the city 1694. 72 The Real Property Law. under the Duke of York or the Crown,*^ and such have been con- firmed by subsequent statutes,^^ or protected by the Constitution.** Sometimes grants of lands, common, etc., were to the freeholders nominatim of such or such a place {e. g.) East Hampton or New Harlem), in trust for the village or town.*" Patents from the People of the State under the Great Seal. As at in- dependence the " State," or the people of the State in their political capacity, succeeded to all the rights of the Crown over ungranted lands,*® all subsequent grants of such lands were made by them, and they are the source of title and in legal theory supply the place formerly held by the Crown, and they possess similar rights to all escheats and forfeitures for alienage.*'' Political independence dates from the inception of hostilities, or the date of the battles of Lexington and Concord, 19th April, 1775, for some purposes, ** and from the adoption of the first State Con- stitution, April 20, 1777, for others.*^ The act of 1779, formally declaring that the people of the State were vested with the seigniory of all lands and rents, was much amplified by later acts; but they all mean much the same thing, as does the like statement in the present Constitution.^" The State simply succeeded to the rights of the Crown over the public domain.®^ In 1784 legislation to regulate the sale and settlement of such lands begins,*^ the commissioners of the land office being vested with powers of sale, etc.®^ The Revised Statutes finally took up the whole matter, regulating and revising all the laws concerning the public lands.®* Chapter *2 Town of Southampton v. Mecox ^ Supra, pp. 45, 67. Bay Oyster Co., 116 N. Y. at p. 5. ^^ Supra, pp. 48, 49; 1 R. S. 718, § i, *3 E. g., Laws of 1694, p. 6 ; I N. Y. now § 10, art. I, Const, of 1894 ; Peo- Col. Laws, 224. pie v. Trinity Church, 22 N. Y. 44. s* Supra, p. 65; Trustees of East *8 Art. I, § 16, Const, of 1894. Hampton v. Vail, iji N. Y. 463, 465. 89jackson v. White, 20 Johns. 313. 85 Trustees of East Hampton v. 9" Supra, pp. 46, 67. Kirk, 68 N. Y. 459 ; Trustees of »i People v. Trinity Church, 22 N. Southampton v. Betts, 21 App. Div. Y. 44, 43S; and see the cases cited in Town *2 Q,ap. 60, Laws of 1784; chap, of Southampton v. Mecox Bay Oyster 67, Laws of 1786; I J. & V. 328. Co., 116 N. Y. I, 6; Lawrence v. Town *3 j r l of 1813, 292. of Hempstead, 155 id. 297 ; People ex 9* Title s, chap. 9, part i, R. S. ; rel. Howell v. Jessup, 160 id. 249. i R. S. 189 seq. Introduction. 73 eleven of the General Laws has now superseded and replaced the Revised Statutes.®^ A transfer of public land by the people of the State is made either by a grant, which is a matter of public record,®® or else by some confirmation, such as an act of the Legislature, which is of equal authority with a grant.®'^ A grant is usually evidenced by letters patent under the great seal of the State,®* but if the State has title to the lands granted, the production of the public record of the grant is sufficient without the letters patent,®® for if the record is correct, everything else is presumed to have been rightly performed under the maxim, omnia prasumuntur rite esse acta. If the record is not correct the letters patent may be insufficient to pass title.^ But as a general principle of law the letters patent are prima facie evidence not only of grantee's title and of regularity of issue, but tlyit all the necessary preliminaries have taken place.^ In some in- stances the deed of a public officer, in behalf of the State, may be regarded as the grant of the State itself.^ Letters patent cannot be avoided collaterally in a suit between individuals* Only the State may take advantage of a condition in the grant by it,^ under the settled rule of law that conditions subse- quent are available only to grantors (and the heirs of a natural person).^ Patents granted by the People of the State may be vacated or annulled by an action maintained by the attorney-general when- ever they were obtained by fraudulent suggestion or concealment ®^ Chap. 317, Laws of 1894. 1 Ibid, supra; cf. Parmly v. Oswego 96 N. Y. C. & H. R. R. R. Co. v. & Syracuse R. R. Co., 7 Barb. 599; Brockway Brick Co., 10 App. Div. affd., 6 N. Y. 74; Brady v. Begun, 387 ; 2 Black. Comm. 346, 347, 348 ; 36 Barb. 533. People V. Mauran, 5 Den. 389, 395. * Jackson ex dem., etc. v. Marsh, *^ Ryan et al. v. Carter et al., 93 6 Cow. 281 ; People v. Mauran, 5 Den. U. S. 78. 389; Williams v. Sheldon, 10 Wend. ®sChap. no, Laws of 1845; § 4, 654; Brady v. Begun, 36 Barb. 533. chap. 317, Laws of 1894, being chap. ^ Sheets v. Selden's Lessee, 2 Wall. XI of the General Laws; Williams v. 177. Sheldon, 10 Wend. 654, 658 ; People v. * People v. Mauran, S Den. 389 ; Mauran, s Den. 389. Brady v. Begun, 36 Barb. 533 ; Peo- 99 Jackson v. Douglass, 5 Cow. 458 ; pie v. Livingston, 8 Barb. 253. Williams v. Sheldon, 10 Wend. 654; 5 Welch v. Silliman, 2 Hill, 491; N. Y. C. & H. R. R. R. Co. v. The Williams v. Sheldon, 10 Wend. 654, Brockway Brick Co., 10 App. Div. 658. 387; People V. Schermerhorn, 19 sfowle v. Remsen, 70 N. Y. at Barb. 540. p. 312. 74 The Real Property Law. of the patentee, or were issued in ignorance of a material fact, or where the patentee violates some condition subsequent, or has for- feited his rightsJ This section of the statute last referred to has no relation to patents from the Crown.® Mines of Gold and Silver. Mines of gold and silver called " royal mines " belonged to the Crown, as a part of the prerogative of coining.® On independence of the Crown they vested in the people of the State,^" as the general government had as yet asserted no exclusive prerogative to coin gold and silver. On the adoption of the Federal Constitution the royal mines in the thirteen colonies were allowed to remain in the States, although by analogy they should have been vested in the Federal government, as it had the exclusive right to coin gold and silver.'* Had the mines been deemed of any value this course suggested would probably have been taken at the time of the adoption of the Federal Constitution when the old imperial prerogatives vested in the general government.^^ In the old common law certain other base mines were doubtfully regarded as part of the King's revenue, possibly because they generally con- tained the precious metals.'* The Crown to encourage miners waived certain rights in such mines by statute." The first revisers of the English statutes after independence re-enacted the former of the English acts.'^ By an act of 1801 the commissioners of the land office were directed toexcept mines of gold and silver in any patents for lands.'® In the Revised Statutes the People's right to certain mines, other than gold and silver, seems too broadly asserted," as it could not exceed the rights of the Crown, at least in lands patented before independence. At present the commissioners of the land office are still directed to except all mines of gold and silver in any patents for lands.'* But this does not apply to a grant of lands under water.'* T§ I9S7, Code Civ. Pro. '5 2 J. & V. 402; i K. & R. 151; i 8 People V. Clark, 9 N. Y. 349, 363. R. L. 124. 9 Plowd. 336, 339. 16 I K. & R. 297, § 13 ; 2 R. L. 292. 10 Supra, pp. 45, 65. it i R. S. 281 ; cf. chap. 745, Laws "Art. I; §§ 8 and 10, Const, of 1894. U. S. 18 I K. & R. 297; 2 R. L. 292; I R. 12 Vide supra, p. 66. S. 281 ; now in " Public Lands Law," 13 See I Black. Comm. 295. chap. 317, Laws of 1894, being chap. 1* I W. & M. St. I, c. 30; s W. & M., XL General Laws, § 4. c. 6. 19 People v. Mauran, 5 Den. 389. Introduction. 75 Acts Appropriating Public Property. The Constitution provides that, on the final passage in either house of the Legislature of any act which makes, continues, or revives any appropriation of public prop- erty, the question shall be taken by yeas and nays, which shall be duly entered on the journals, and three-fifths of all the members elected to either house shall in all such cases be necessary to consti- tute a quorum.^" So the assent of two-thirds of the members elected to each branch of the Legislature is requisite to every bill appro- priating the public property for local or private purposes ;^^ and a local or a private bill may embrace only one subject, which shall be expressed in the title.^^ While the presumption is that an act of the Legislature is in con- formity with these constitutional restrictions,^^ how far the courts will receive independent testimony tending to show a noncompliance of the Legislature is the question.^* It is said, in any event, that the noncompliance must be pleaded in order to be taken advantage oiP Patents, how Construed. Grants by letters patents are to be con- strued most strongly for the Crown, and since independence, for the State.^^ But this doctrine is subject to limitations: The patents must be open to several intents before such a construction is ap- plicable,^^ and where the grant is for a valuable consideration, they must be construed most favorably for the patentee.^* 20 Const, of 1894, art. Ill, § 25 ; 26 2 Black. Comm. 34. Darlington v. The Mayor, etc., 31 N. 27 gee cases discussed, Forsythe's Y. 164, 185. Cases and Opinion, 175, 176. 21 Const, of 1894, § 20, art. III. ^8 Sir John Moline's Case, lO Rep. 22 Const, of 1894, § 16, art. III. 65 ; Langdon v. The Mayor, etc., 93 23 People V. Supervisors, etc., 8 N. N. Y. 129, 147 ; People v. Staten Y. 317. Island Ferry Co., 68 id. 7; N. Y. 2* W. W. M. Co. V. Shannahan, 128 Central R. R. Co. v. Brockway Brick N. Y. 345, 360. Co., ID App. Div. 387 ; Wright v. Syra- 25 People V. Supervisors, etc., 8 N. cuse R. R. Co., 92 Hun, 32; People v. Y. 317; cf. People ex rel., etc. v. Com- Deehan, 153 N. Y. 528. missioners, 54 id. 276. CONSTITUTIONAL PROVISIONS KBLATINO TO THE LAW OF REAL PROPERTY IN NEW YORK.* Constitution adopted September 28, 1894. ARTICLE I. " § 6. No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or which this State may keep with the consent of Congress in time of peace, and in cases of petit larceny, under the regulation of the Legislature), unless on presentment or indictment of a grand jury, and in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions. No person shall be subject to be twice put in jeopardy for the same ofifense ; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation. § 7. When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. General laws may be passed permitting the 1 As the following constitutional provisions are closely allied to " The Real Property Law," they are inserted for the reader's convenience. l77^ 78 The Real Property Law. owners or occupants of agricultural lands to construct and main- tain for the drainage thereof, necessary drains, ditches and dykes upon the lands of others, under proper restrictions and with just compensation, but no special laws shall be enacted for such pur- poses. § lo. The people of this State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State ; and all lands the title to which shall fail, from a defect of heirs, shall revert, or escheat to the people. § II. All feudal tenures of every description, with all their in- cidents, are declared to be abolished, saving, however, all rents and services certain which at any time heretofore have been lawfully created or reserved. § 12. All lands within this State are declared to be allodial, so that, subject only to the liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their resi)ective estates. § 13. No lease or grant of agricultural land, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid. § 14. All fines, quarter sales, or other like restraints upon aliena- tion, reserved in any grant of land hereafter to be made, shall be void. § 15. No purchase or contract for the sale of lands in this State, made since the fourteenth day of October, one thousand seven hun- dred and seventy-five ; or which may hereafter be made, of, or with the Indians, shall be valid, unless made under the authority, and with the consent of the Legislature. § 16. Such parts of the common law, and of the acts of the Legis- lature of the Colony of New York, as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred and seventy-five, and the resolutions of the Congress of the said colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred and seventy-seven, which have not since expired, or been repealed or altered ; and such acts of the Legislature of this State as are now in force, shall be and continue the law of this State, subject to such alterations as the Legislature shall make concerning the same. But Constitutional Provisions. 79 all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated. § 17. All grants of land within this State, made by the King of Great Britain, or persons acting under his authority, after the four- teenth day of October, one thousand seven hundred and seventy- five, shall be null and void ; but nothing contained in this Constitu- tion shall affect any grants of land within this State, made by the authority of the said king or his predecessors, or shall annul any charters to bodies politic and corporate; by him or them made, be- fore that day ; or shall affect any such grants or charters since made by this State, or by persons acting under its authority; or shall impair the obligation of any debts contracted by the State, or in- dividuals, or bodies corporate, or any other rights of property, or any suits, actions, rights of action, or other proceedings in courts of justice." Comments on the Constitution. Sections 6 and 7 of article I of the Constitution relate particularly to the exercise of the power of eminent domain by the State,^ and need not be discussed in this treatise. The Federal government is also precluded from taking private property for public use without just compensation.^ Sections 10, 11 and 12 of article I of the Constitution were, prior to 1846, contained in the Revised Statutes,* and were transferred to the Constitution of 1846,® not without objection from lawyers in the convention, who deemed that the re-enactment of section 11, at least, was wholly unnecessary f feudal tenures never having existed in New York since the English occupation in 1664.'^ They had been abolished in England by the act 12 Charles II, chapter 24, before the conquest of New York by the English.^ The real meaning of section 10 is more readily perceived if we consider its origin. It is a statement taken out of an act adopted 2 Matter of Opening Oneida Street, ^ Debates of Proceedings of Conven- 22 Misc. 235 ; Clark v. Water Commis- tion of 1846. sioners, 148 N. Y. 6 ; Egerer v. N. Y. '' People v. Van Rensselaer, 9 N. Y. C. & H. R. R. R. Co., 70 App. Div. p. 338; Van Rensselaer v. Smith, 27 421. Barb. 149; Overbagh v. Patrie, 8 id. 3 Amendment Const, of U. S., art. 28, 40; aflfd., 6 N. Y. 510; note of V. Revisers to i R. S. 718, §§ 3, 4- * I R. S. 718, §§ I, 3. 8 Vide supra. Introduction, pp. 43, 5 Art. I, §§ II, 12, 13. 53. 80 The Real Property Law. originally during the War of Independence and subsequently placed in the statute book.* It was intended to express the facts that upon the subversion of the Crown, the State (i. e., The People in their political capacity) succeeded to the rights of the Crown in respect of landed property.^* Titles and their Source. The original settlements of the Hudson River shores and of a part of Long Island by the Dutch, and the subsequent conquest by the English in 1664 are familiar.^^ Con- sequently in legal theory, all titles to estates in New York emanate from the State, the Crown of England,^^ or from an earlier Dutch grant.^^ But as the Crown ordered all Dutch grants in New York to be surrendered or confirmed, the presumption now is that this law was obeyed, and that all Dutch grants were converted into the tenure by free and common socage.^* In the Province of New York the Crown was the sole allodial owner of all the lands not patented prior to August, 1664. The heritable estates in lands patented before that time were afterward converted into heritable estates in free and common socage, held of the Crown. ^' The earlier Dutch estates have possessed, by the terms of their confirmation, some qualities of their own, which it is unnecessary now to consider.^" The Dutch estates in question, how- ever, depend on the terms of their confimiation by the English, and the subsequent course of events in the province and State.-''' sjourn. Prov. Conv., I, 554; chap. 463, 482; Beekman v. Saratoga & 25, Laws 1779; I J. & V. 44; I R. S. Schenectady R. R. Co., 3 Pai. p. 66. 718, § 3. 1* See note of original Revisers to i i*See paraphrase of this doctrine in R. S. 718, §§ 3, 4; Hinckel v. Stevens, Beekman v. Saratoga & Schenectady 165 N. Y. 171 ; Paige v. Schenectady R. R. Co., 3 Pai. 45, p. 72. Railway Co., 84 App. Div. 91, 178 N. 11 See Introduction, supra, pp. 50, Y. 102, no. SI. ^® See the method of conversion in 12 Wendell v. People, 8 Wend. 183, Hoffman's Treatise on Estates, City 188 ; People v. Livingston, 8 Barb. 253, of N. Y., II, 44, 46 ; Bogardus v. 276; People V. Trinity Church, 22 N. Trinity Church, 4 Sandf. Ch. 699; Y. 44, 46; Mitchel v. The United Jackson ex dem., etc., v. Murray, 7 States, 9 Pet. p. 748 ; Jackson ex dem., Johns. 5. etc., V, Ingraham, 4 Johns. 163, 182; i* Dunham v. Williams, 37 N. Y. Seneca Nation v. Christie, 126 N. Y. 251 ; Smith v. City of Rochester, 92 122; McKinnon v. Bliss, 21 id. 206. id. 463, 482. 13 People V. Clarke, 10 Barb. 120, it Canal Appraisers v. People, 17 141 ; Dunham v. Williams, 37 N. Y. Wend. 571 ; People v. Canal Apprais- 251 ; Smith v. City of Rochester, 92 id. ers, 33 N. Y. 461 ; Brief of Mr. Atty.- Constitutional Provisions. 81 Crown-grants, Tenure. The Crown granted most of the original es- tates in the lands lying in New York to its subjects,^^ and in these royal patents an estate of a particular tenant was defined and was generally a " fee simple.'' The lands themselves were to be held by the tenant and his heirs in free arfd common socage tenure of the Crown, a quit-rent being ordinarily reserved. The War of Inde- pendence first severed the relation of the Crown to the socage tenants, substituting at first the revolutionary government and after- ward the organized corporate State as chief lord of the fee.'^ The " terra regis " or the ungranted Crown lands also then vested in the State of New York, which subsequently granted them under the great seal. These new grants expressly created what were fee simple estates in the common law. But the new fee simple estates differed from the old Crown grants in one respect only, they were free of all those services (except rents reserved) which attached to the old tenure by free and common socage.^* In other words, the lands were allodial and free of the legal service called fealty.''^ Fealty was a purely nominal service, never exacted here in practice, and its chief legal use was that it supported the right of distraint for rents without the necessity of a rent charge. In all other respects the quantity and the quality of estates in socage lands and those of estates in allodial lands were alike, both being determined by the fundamental or common law adopted by the new State in the first Constitution.^^ Chancellor Kent believed that lands holden by the tenure of free and common socage, after the War of Independence, did not differ from allodial land in any essential respect.^" The revisers state that the real reason in making all lands allodial lands Genl., in People v. Page, separately i^ De Peyster v. Michael, 6 N. Y. printed, 39 App. Div. no; Beekman at p. 504. This case was subsequently V. Saratoga & Schenectady R. R. Co., questioned on other points, however. 3 Pai. at p. 66; Hinckle v. Stevens, The incidents of this change are nar- 165 N. Y. 171. rated in the Introduction, supra. 18 I pass over the estate to the Duke 20 See Revisers' notes to i R. S. of York which subsequently merged 718, §§ 3, 4. in his Crown and devolved with it. 21 Jackson v. Schutz, 18 Johns. 174; The history of this devolution is very Cornell v. Lamb, 2 Cow. 652. familiar to students of our legal 22 § ^5 history. Supra, pp. 43, 58. 23 4 Coram. 3. 6 82 The Real Property Law. was to make tlie tenures in New York uniform.^* They desired probably also to destroy all feudal presumptions in the common law and to make the Revised Statutes the key of their own interpreta- tion. A fee simple in allodial lands means now only the largest estate of inheritance or one to heirs generally in infinitum.''^ The dominion of the owner or tenant in fee simple of lands is not, there- fore, absolute, but is still subject to the political supremacy of the People of the State. The restriction and qualifications of this supremacy are determined by the constitutions of government. State and Federal.^^ Presumption of State's Title. While the Constitution declares that the People possess the original and ultimate property in all lands, it does not establish a rule of evidence, but a principle of sovereignty. There is no presumption of title in favor of the People against the actual occupant of land, until it is shown that the possession has been vacant within forty years.^^ Continuation of tenure. In view of the fact that the ist article of " The Real Property Law " perpetuates the title " Tenure of Real Property," it is apparent that the Legislature still recognize that lands which are subject to escheats are essentially in tenure whether that tenure be called " allodial tenure," as the revisers termed it,^* or " socage tenure," at least since the statute 12 Charles II, chapter 24, swept away the feudal burdens. The only distinction between the so-called " allodial tenure " and socage tenure after independ- ence was the incident of " fealty " which still attached theoretically to the socage tenure of the State, in order to support the common- law remedy of distress. When fealty became no longer essential in New York to distraints, there was no real difference between the allodial tenures of the Revised Statutes, and the socage tenure of the />o.yf-revolutionary common law of New York. Yet strictly. 24 Revisers' notes, i R. S. 718, SoS; Johnston v. Spicer, 107 id. 185; §§ 3, 4- Wendell v. People, 8 Wend. 183, 188; 25 Cf. Challis, 29, 42, 167. People v. Denison, 17 id. 312 ; Clark 26 Const, of 1846, art. I ; Const, of v. Holdridge, 12 App. Div. 613 ; cf. 1894-S, art. I; Fed. Const., art. I, N. Y. Cent. & H. R. R. R. Co. v. § 10, and Amendment XIV. Brennen, 12 id. 103. 2T People V. Trinity Church, 22 N. 28 Note to i R. S. 718, §§ 3, 4, and Y. 44 ; People v. Van Rensselaer, 9 id. see caption of art. I of " The Real 291, 318, 319; People V. Arnold, 4 id. Property Law." Constitutional Provisions. 83 tenure and " allodium " denote inconsistent relations in law.^^ But this is not invariably true, for " allodium " was in early times oc- casionally used to denote an inheritable feud.^" Under this article the paramount rights of the State are broader than the feudal right of escheat, which accrued when the tenants' heirs failed, or propter defectum sanguinisP- This section implies the right of the State to take the benefit of the forfeiture occasioned by alienage.^^ Construction of Grants by the Crown or State. This topic has been dis- cussed in the Introduction.^^ Leases. Section 13 of article I of the Constitution, relative to leases, is considered below in connection with " estates for years," under section 20 of " The Real Property Law," ^* and in connection with estates of inheritance under section 21 of the same law.^^ Restraints on Alienation. Section 14 of article I of the Constitution, relating to restraints on alienation, was declaratory.*^ Before 1846 a reservation of a quarter or a sixth of the purchase money upon any subsequent sale was deemed a void reservation in a grant in fee.*^ The prohibition is now express. This subject is further considered at a subsequent page.^* Common and Statute Law. The first Constitution of the State ex- pressly continued the old common and statute law in force in the Province of New York, on April 19, I77S-^^ The statutes of Eng- land then extending here were subsequently re-enacted in the first general revision of the State,*" and then all the statutes of England were declared to have no further effect here.'*^ Subsequently the 29 Tenure denotes the specific feu- 37 Overbagh v. Patrie, 8 Barb. 28 ; S. dal relation between the lord and C, 6 N. Y. 510; De Peyster v. Mich- the tenant. Atty.-Gen. of Ontario v. ael, id. 467, overruling Jackson v. Mercer, 8 L. R. (App. Cas.) 767. Schutz, 18 Johns. 174. De Peyster v. 3* Freeman, Norman Conquest, IV, Michael was itself practically repudi- 38, notes. ated, in its statement that the statute 31 I R. S. 718, § I ; Watkins, De- " Quia Emptores " was not in force in scents, 6 ; Johnston v. Spicer, 107 N. New York. Van Rensselaer v. Hays, Y. i8s. 19 N. Y. 68. 32 People V. Conklin, 2 Hill, 67. 38 infra, pp. 106, 108, under § 3, 33 Supra, pp. -jz, 75. The Real Prop. Law. 3* Infra. 39 Const, of 1777, § xxxv. ^ Infra. 40 By Jones & Varick. 36 Vide infra, under § 3, The Real « Chap. 46, Laws of 1788; 2 J. & V. Prop. Law. 282 ; § 30, Statutory Construction Law, chap. 677, Laws of 1892. 84 The Real Property Law. acts of the Colonial Assembly were in like manner declared no longer to be considered as laws of this State.*^ Now the resolutions of the Congress of the colony and the convention of the State of New York are declared to be no longer laws of this State.** Thus only so much of the old common law is now retained as is not expressly abrogated, or is consistent with the new institutions.** *2 Chap. 21, Laws of 1828-1829, § 4. ** Shayne v. Evening Post Publish- *3 § 30, Statutory Construction Law, ing Co., 168 N. Y. 70, 75. See this chap. 677, Laws of 1892. subject discussed in chapter II, Intro- duction, pp. 54. 62, 65, supra. THE REAL PROPERTY LAW. CHAPTER 547.1 [General.] AN ACT relating to real property, constituting chapterforty- six of the general laws. Became a law May 12, 1896, with the approval of the Governor. Passed, three-fifths being present. The People of the State of Nezv York, represented in Senate and Assembly, do enact as follows: CHAPTER XLVI OF THE GENERAL LAWS. The Real Property Law. Article i. Tenure of real property. (§§ 1-9.) 2. Creation and division of estates. (§§ 20-56.) 3. Uses and trusts. (§§ 70-93.) 4. Powers. (§§ 1 10-163.) 5. Dower. (§§ 170-187.) 6. Landlord and tenant. (§§ 190-202.) 7. Conveyances and mortgages. (§§ 205-234.) 8. Recording instruments affecting real property. (§8 240-277.) 9. Descent of real property. (§§ 280-296.) 10. Laws repealed; when to take effect. (§§ 300-301.) ARTICLE I. Tenure of Real Property. Section i. Short title; definitions; effect. 2. Capacity to hold real property. 3. Capacity to transfer real property. 4. Deposition of resident alien. 5. When and how alien may acquire and transfer real property. 6. Effect of marriage with alien. 7. Title through alien. 8. Liabilities of alien holders of real property. 9. Heirs of patriotic Indian. 1 Laws of i8g6. [85] 86 Title — Definitions. Section i. Short title; definitions; effect. — This chapter shall be known as the real property law. The terms " real property " and " lands " as used in this chapter are coex- tensive in meaning with lands, tenements and heredita- ments. This chapter does not alter or impair any vested estate, interest or right, nor alter or affect the construc- tion of any conveyance, will or other instrument which has taken effect at any time before this chapter becomes a law. Formerly i Revised Statutes, 750, sections 10 and 11: § 10. The terms " real estate," and " lands," as used in this Chapter, shall be construed as co-extensive in meaning with lands, tenements and heredita- ments.2 § II. None of the provisions of this Chapter, except those converting for- mal trusts into legal estates, shall be construed as altering or impairing any vested estate, interest or right; or as altering or affecting the construction of any deed, will or other instrument, which shall have taken effect at any time before this Chapter shall be in force as a law.' Comments on this Section. Were it not for the fact that the Com- missioners of Statutory Revision in their Notes, or Report, to the Legislature, state that this section makes no change in the sections of the Revised Statutes just set forth, it would be unnecessary to point out an obvious distinction, i Revised Statutes, 750, sec- tion 10, refers only to the construction of chapter i of part II, Revised Statutes. But section i of The Real Property Law refers to the construction of the same words throughout this entire act, and yet in other parts of this act we must note that the term " real property " is to receive a more extended construction than that just declared by this section.* This section of this act should, therefore, have been divided into two distinct sections as in the Revised Statutes,' and the defining section then limited to those articles of this chapter preceding articles VII and VIII, which have definitively prescribed their own statutory construction.® Then this section would have corresponded with the sections of the Revised Statutes from which it purports to be taken. Construction of The Real Property Law. This act is a re-enactment of a part of the Revised Statutes. It is a maxim that a mere change 2 Repealed, chap. 547, Laws of i8g6. Laws of 1892, being chap. I of the 3 Repealed, chap. 547, Laws of 1896. General Laws. * §§ 240, 280, The Real Prop. Law; i^ Supra, i R. S. 750, §§ 10, 11. cf. § 3, Stat. Const. Law, chap. 677, « § § 240, 280, The Real Prop. Law. Definitions. 87 in the language of a revised act does not vary the prior construc- tion, unless the change is such as to render clear an intention to vary such construction^ Notes and Reports of Commissioners of Statutory Revision. The notes and reports of the new revisers are deservedly authoritative in the exposition of this act.® This was the old rule relative to the notes of the authors of the Revised Statutes.* Definitions. As throughout this entire chapter the terms " real property " and " lands " are declared the equivalent of " lands," " tenements " and " hereditaments," we may inquire what " lands," " tenements " and " hereditaments " mean. These are technical terms of that common law adopted by the Constitution as the fun- damental law of the State.^" The meaning of common-law terms is still settled by the com- mon law, unless modified by statutes of the State." " ' Lands,' Terra, in the legall signification comprehendeth any ground, soile or earth whatsoever; as meadowes, pastures, woods, moores, waters, marishes, furses, and heath. Terra est nomen generalissimum et comprehendit omnes species terrcz, etc., etc." ^^ In its general signification " land " has an indefinite extent upwards, " cujus est solum ejus est usque ad coslum." It includes everything terrestrial, not only the ground or soil, but everything attached to the earth, whether by the course of nature, as trees,*^ herbage^* and water,^^ or by the hands of man, as houses and other buildings.^® Grass partakes of the nature of land, but, on the other hand, crops ^ Taylor v. Delancy, 2 Cai. Cas. 143, 12 Cq. Litt. 4a ; 2 Black. Comm. 16 ; 151; Goodell V. Jackson, 20 Johns. 3 Kent Coram. 401; Challis, 36; Pond 693, 722; Dominick v. Michael, 4 v. Bergh, 10 Paige, 140. Sandf. 374, 409. 1^ Vorebeck v. Roe, 50 Barb. 302 ; * People ex rel. Cornell S. Co. v. Goodyear v. Vosburgh, 57 id. 243 ; Dederick, 161 N. Y. 195, 204. These Warren v. Leland, 2 id. 613 ; Brooks notes appear in Appendix I. v. Galster, 51 id. 196; Edson v. 9 Introduction Edmonds, R. S. ; Has- Howell, 86 Hun, 424. call V. King, 162 N. Y. at p. 146. 1* Matter of Chamberlain, 140 N. Y. These notes appear in Appendix n. 390; Banta v. Merchant, 173 id. 292, 10 Art. I, § 16, supra, p. 78. 296. 11 Chap. 530, Laws of 1873 ; Despard i^ Rodgers v. Jones, i Wend. 237, V. Churchill, 53 N. Y. 192, 199, et su- 255 ; Jackson ex dem., etc. v. Hal- pra, pp. 23, 62; Perkins v. Smith, 116 stead, 5 Cow. 216. N. Y. 441 ; Matter of Ehrsam, 37 App. i^ Hoffman v. Armstrong, 48 N. Y. Div. 272, 274; Michaels v. Fisher, 169 201. N. Y. 381. 88 Waters. produced by cultivation, as between heir and executor, pass to the latter." Even young trees, in a nursery, may, as between landlord and tenant, form an exception to the general rule, and be regarded as not part of the land.^^ Tenements are all those rights or things which were at common law the subject of tenure. ^^ Hereditaments include whatever may be inherited, be it corpo- real or incorporeal, real, personal or " mixt." ^ As Challis points out, " hereditaments " excludes " special occupancy."^^ It includes an easement to carry water across the lands of another.^^ It is a term of the largest sigriification.^^ Hereditaments were commonly divided at common law into (i) real, mixed and personal: (2) Into corporeal and incorporeal.^ An annuity was a personal hereditament having no connection with land.^ Rents, charges and profits a prendre were mixed hereditaments.^" Waters. If the conveyancer wish to convey property which con- sists of a pond or other nontidal body of water it must be de- scribed as " land under water," or by metes and bounds, for a conveyance of mere water carries only a right of piscary or user.*^ Adverse Possession of Lands under Water. Lands under water may be adversely possessed,^* although proof is diflEicuIt.^® So right over them may be acquired by prescription.^" IT Matter of Chamberlain, 140 N. Y. ^^ Vide infra, under §§ 20, 21, 50. 390. The Real Prop. Law. 18 Hamilton v. Austin, 36 Hun, 138 ; 27 Beach v. Mayor, 45 How. Pr. Battesman V. Albright, 122 N. Y. 484. 357, 368; Nostrand v. Durland, 21 19 Co. Litt. 6a ; 2 Black. Comm. 16 ; Barb. 478 ; Rogers v. Jones, i Wend. 3 Kent Comm. 401; Challis, 37. The 237; Jackson v. Halstead, 5 Cow. 216; definitions of Mr. Challis are justly Roe v. Strong, 107 N. Y. 350, 359; esteemed as quite equal to those of Roberts v. Baumgarten, no id. 380, any of his predecessors. 384. 20 Co. Litt. 6a; 2 Black. Comm. 17; ^sximpson v. Mayor, 5 App. Div. 3 Kent Comm. 401 ; Canfield v. Ford, 424, 429 ; Dosoris Pond Co. v. Camp- 28 Barb. 336; Nellis v. Munson, 108 bell, 25 id. 179; Hall v. The State of N. Y. 4S3, 4S8. New York, 72 id. 360. 21 Challis, 38. 29 De Lancey v. Piepgras, 138 N. Y. 22 Nellis V. Munson, 108 N. Y. 453. at p. 46. 23 Canfield v. Ford, 28 Barb. 336. ^o Hall v. The State of New York, 24 Challis, 39, 40. 72 App. Div. 360. 25 Vide infra, under §§ 32, 76, The Real Prop. Law, "Annuities." Lands under Water. 89 Title to Lands under Water. The title to lands under navigable tide water in the State of New York is presumptively in the State and derived by it from the Crown of England, and it holds such lands subject to the same, or similar, limitations as the Crown held them.31 So the title to the lands under the greater nontidal, navigable waters of this State are in the State,^^ but subject to the controlling action of Congress in reference to commerce.^ Tidal Creeks. It is disputed whether by the English common law the beds of tidal creeks, which are not navigable, belong to the riparian proprietor or to the State. If the grants of lands on them are ancient and to be construed by the former law of New Netherland, the beds would belong to the State, whether the creeks were navigable or not.^* Littoral and Riparian Proprietors. The rights inter se and as against the State of littoral and riparian proprietors of lands may be briefly considered. They depend much on the nature of the waters bordered on, whether ocean, river, pond or lake. Presumptively, proprietors whose property borders or adjoins nontidal streams, ponds, lakes or artificial waters' are prima facie owners of the soil under water to the thread or center of the streams, " usque ad Mum aquce.'' But this presumption may be rebutted.^^ The 31 Knickerbocker Ice Co. v. Schultz, Shooting Co. v. Erie Shooting Club, ii6 N. Y. 387; Mahler v. Transporta- 90 Fed. Rep. 680; Scranton v. Wheeler, tion Co., 35 id. 352, 356; Trustee.s of 179 U. S. 141. Brookhaven v. Strong, 60 id. 56 ; Peo- 34 See Pirsson's Dutch Grants and pie V. New York & S. I. F. Co., 68 id. Tidal Creeks, passim; Roberts v. 71, 78; Roberts v. Baumgarten, no Baumgarten, no N. Y. 380. id. 380, 383 ; Knight v. Association, 35 Hale, De Jure Maris, Cap. i ; 142 U. S. 161, 183 ; Shively v. Bowlby, Comrs. of Canal Fund v. Kempshall, 152 id. I, IS, 20, 21; Lowndes v. 26 Wend. 404; Child v. Starr, 4 Hill, Huntington, 153 id. i ; Coburn v. San 369 ; Chenango Bridge Co. v. Paige, Mateo County, 75 Fed. Rep. 520, 527; 83 N. Y. 178; Smith v. City of Roch- People V. Schermerhorn, 19 Barb. 541 ; ester, 92 id. 463 ; Goodmen v. National People ex rel. Howell v. Jessup, 160 Ice Co., 134 id. 355 ; Shively v. Bowlby, N. Y. 249, 257; Rockefeller v. La- 152 U. S. i, 31; Deuterman v. Gains- mora, 85 App. Div. 254, 258. borg, 9 App. Div. 151 ; Warren v. City 32 Smith V. City of Rochester, 92 N. of Gloversville, 81 id. 291 ; cf. cases Y. 463, 479; People ex rel. Burnham cited, Girard on Titles (4th tA.\ V. Jones, 112 id. 597, 607; Richardson p. 507; Pirsson on Tidal Creeks, etc., V. U. S., 100 Fed. Rep. 714. passim. 33 Infra, p. 93 ; Toledo Liberal 90 Lands under Water. rule last mentioned is subject to these exceptions: (i) The Great Lakes; (2) the upper waters of the Hudson and the Mohawk rivers; (3) streams forming the boundaries of States. (i) The Great Lakes, though nontidal, are really freshwater in- land seas and are outside of the contemplation of the common law relating to freshwater ponds and lakes.^^ (2) The lands on the upper or nontidal waters of the Hudson and the Mohawk rivers were settled under the dominion of the ancient Dutch proprietors and are not bound by the common law but by the civil law, under which the State and not the riparian proprietors succeeded to the ownership of the bed of the stream.^^ But if the original Dutch patent was confirmed by the English Crown then the common law may be a rule of construction.''^ (3) The common-law rule has no relevancy to streams which constitute the boundaries of different States.^^ Proprietors whose Lands Border on Navigable Rivers. On navigable tidal rivers the State is the proprietor of the bed of the stream and soil under water up to high-water mark.*" Riparian proprietors have a prima facie right of access by water to their lands bordering on navigable streams as appurtenant to the upland,*' 36 Smith v. City of Rochester, 92 N. id. 387, 435 ; Trustees of Brookhaven Y. at p. 479; People ex rel. Burnham v. Strong, 60 N. Y. 56, 65; Sage v. V. Jones, 112 id. 597, 606; Illinois Mayor, 154 id. 61, 67; Mahler v. Central Railroad v. Illinois, 146 U. S. Transportation Co., 35 id. 352, 356; at p. 435 ; Champlain, etc., Co. v. Langdon v. Mayor, 93 id. 129; De Valentine, 19 Barb. 484. Lancey v. Wellbrock, 113 Fed. Rep. 3'? Smith V. City of Rochester, 92 N. 103. Y. at p. 482 ; People v. Canal Ap- 4i Trustees of Brookhaven v. Strong, praisers, 33 id. 461 ; People v. Page, 39 60 N. Y. 56, 65; Rumsey v. N. Y. App. Div. no; cf. 57 Hun, 480; 86 id. & E. R. R. Co., 133 id. 79; Sage v. 415- Mayor, 154 id. 61, 70; Saunders v. 38 Hinckel v. Stevens, 165 N. Y. N. Y. C. & H. R. R. Co., 144 id. 75, 171; cf. Allen, Sen., s Wend, at p. 87; Hedges v. West Shore Railroad 4S3; Dunham v. Williams, 37 N. Y. Co., 150 id. 150; Matter of City of 251. New York, 168 id. 134; People v. 39 Smith V. City of Rochester, 92 Mould, 37 App. Div. 35, 38 ; revg. 24 N. Y. 463; Kingman v. Sparrow, 12 Misc. Rep. 287; Scranton v. Wheeler, Barb. 201; Canal Appraisers v. Peo- 179 U. S. 141, 175; Yates v. Mil- pie, 17 Wend. 571, 597. waukee, 10 Wall. 497; Illinois Cent. *0Shively v. Bowlby, 152 U. S. i. Railroad v. Illinois, 146 U. S. 387; 21, and New York cases there cited; Town of North Hempstead v. Greg- Illinois Cent. Railroad v. Illinois, 146 cry, 53 App. Div. 350. -Riparian Rights. 91 including right to construct a wharf or dock, and private inter- ference therewith is actionable.*^ Whenever power has been granted by the State to regulate the filling in of navigable rivers, in order that deep water may be more conveniently reached, this right of access of the riparian proprietor has always been recog- nized in this State by a provision or condition that the grant of land under water must be made to the owner of the upland.** How far such a grant to a private person is revocable is another question, as the State holds the tideways in trust and not as jus privatum.** As a rule the grantee of lands under water takes a fee.*^ Notwithstanding a riparian owner may, in the absence of a prior grant, have the right of access to the water and right to pre-empt land under water, yet when the Crown, or its successor, the State, has previously granted the land between the high and the low-water marks — called the foreshore or " tideway " — to a municipality, such riparian owners are not, it has been said, en- titled to compensation if the municipality fill in the tideway and thus cut oflE the water right of access from this class of riparian proprietors.*® But such a grant in this State is generally made *2Rumsey v. N. Y. & N. E. R. R. People ex rel., etc. v. WoodruflF, i66 Co., 133 N. Y. 79; Saunders v. N. Y. id. 453. C. & H. R. R. Co., 144 id. 75 ; Archer « Coxe v. State, 144 N. Y. 396, 407. V. Eckerson, lo App. Div. 598; Yates *s De Lancey v. Wellbrock, 113 Fed. V. Milwaukee, 10 Wall. 497; Jenks v. Rep. 103; cf. Knickerbocker Ice Co. Miller, 14 App. Div. at p. 480 ; .People v. Forty-second St. R. R. Co., 39 Misc. V. Mould, 37 id. 35, 38 ; People v. Rep. 27. Woodruff, 30 id. 43 ; City of Brook- *8 Mayor, etc. v. Hart, 95 N. Y. 443 ; lyn V. Mackay, 13 id. 105 ; People v. Sage v. Mayor, 10 App. Div. 294 ; 154 People's Coal Co., 32 Misc. Rep. 478; N. Y. 61; Jarvis v. Lynch, 157 id. Leverich v. City of Mobile, 1 10 Fed. 445 ; Matter of N. Y. Speedway, 60 Rep. 170. App. Div. 122; revd., 168 N. Y. 134; *3 Arts. V and VII, chap. II, Gen- Baird v. Campbell, 67 App. Div. 104 ; eral Laws, repealing chap. 283, Laws cf. statement, Shively v. Bowlby, 152 of 1850, and I R. S. 208, which in U. S. I, 21 ; Scranton v. Wheeler, 179 turn repealed l R. L, 293, embodying id. 141, 176; Matter of City of New § 18, chap. 67, Laws of 1786. Matter York, 168 N. Y. 134; Sullivan Timber of New York v. Comrs. of Land Of- Co. v. City of Mobile, no Fed. Rep. fice, 25 Misc. Rep. 202; People ex rel. 186; Salliote v. King Bridge Co., 122 Burnham v. Jones, 112 N. Y. 597; id. 378; Knickerbocker Ice Co. v. Mayor, etc. v. Hart, 95 id. 443, 457; Forty-second St. R. R. Co., 176 N. Y. 408. 92 Riparian Rights. to a municipal body.*^ But if the tideway is not so previously granted to a municipality, the riparian owner's right of access is now treated in this State as a valuable property right, and if it is cut off by private action he is entitled to constitutional pro- tection and compensation.** Indeed, the tendency of the decisions is to compensate the riparian owner in all cases where he is de- prived of his right of access,*" excepting where the right of access is cut off by the State or general government in the improvement of navigation for the general benefit of the public.^" When land under water is thus granted by the State to the riparian proprietor it becomes appurtenant to the upland and passes by a conveyance of the latter without specific description ;°* so riparian rights acquired by prescription pass as appurtenant to the upland.^^ A riparian proprietor may by his conveyance of lands adjacent to the water reserve not only his riparian privileges, but sub- sequent accretions to the soil.^^ A grant of lands on tide water is, in the absence of metes and bounds or fixed distances, a grant to high-water mark.^ Where land is conveyed, bordering upon a lake or pond, if it is a natural pond the grant extends only to the water edge.^ But the presumption is, in the absence of metes and bounds, that *'' Coxe V. State, 144 N. Y. 396, 407. id. 60; Baird v. Campbell, 67 App. *8 Matter of City of New York, 168 Div. 104, 112; Salliote v. King Bridge N. Y. 134; Langdon v. Mayor, 93 id. Co., 122 Fed. Rep. 378. 129 ; Matter of Riverside Park Ex- ^i Archibald v. N. Y. C. & H. R. R. tension, 27 App. Div. 373; Steers v. Co., 157 N. Y. 574; Hall v. State of Brooklyn, loi N. Y. 51; Williams v. New York, 72 App. Div. 360. Mayor, etc., 105 id. 419 ; De Lancey ^^ Hall v. State of New York, 72 V. Wellbrock, 113 Fed. Rep. 103. App. Div. 360. *9 Matter of City of New York, 168 ^^ People ex rel. Burnham v. Jones, N. Y. 134; Leverich v. Mayor, etc., of 112 N. Y. 597. Mobile, no Fed. Rep. 170; Sullivan 6* Palmer v. Hicks, 6 Johns. 133; Timber Co. v. City of Mobile, no id. United States v. Pocheco, 2 Wall. 587; 186; Shively v. Bowlby, 152 U. S. De Lancey v. Piepgras, 138 N. Y. a6, I. 21. 36; Oakes v. De Lancey, 133 id. 227; soScranton v. Wheeler, 179 U. S. Mayor v. Hart, 95 id. 509; Trustees 141, 17s; Rumsey v. N. Y. & N. E. v. Kirk, 68 id. 459. R. R. Co., 13a N. Y. 88 ; Sage v. 65 Wheeler v. Spinola, 54 N. Y. 377 ; Mayor, etc., 154 id. 6i ; Slingerland Gouverneur v. National Ice Co., 25 V. International Contracting Co., 169 Abb. N. C. 276; revd., 134 N. Y. 355. Jus Publicum. 93 lands under water of a small inland pond belong to the proprietors of adjoining lands.*"® Jus Publicum. This power of the State to grant rights to land under water in navigable streams to riparian proprietors is limited by two qualifications : The grant is subject (i) to the public right of free navigation jure publico-^'' (2) to the acts of Congress regu- lating commerce.^ Consequently, a riparian grantee takes and holds land under water subject to the rights of the public, and subject to the paramount laws of Congress regulating the com- mercial use of navigable waters f^ the power of Congress being coextensive only with its rights to regulate commerce.®" It fol- lows from the qualified nature of riparian tenure that compensation need not be made to riparian proprietors for structures imposed in navigable streams to improve navigation by the United States.®* If navigation is unlawfully impeded by a private structure it is a public nuisance and proceedings lie on behalf of the People of the State®* or by the United States.®^ But a private person has no standing to abate the nuisance unless he show special damage.®* Docks. Riparian owners of docks have a right to dredge to make them commercially useful, and are not liable thereby for damages ^^ Gouverneur v. National Ice Co., 202, 234 ; Scranton v. Wheeler, 179 L^. 134 N. Y. 3SS ; Matter of Brookfield, S. 141 ; Lake Shore & Michigan Rail- 176 id. 138. way v. Ohio, 165 id. 356, 366; Jencks 57 Bedlow V. N. Y. Floating Dock v. Miller, 14 App. Div. 474 ; Richard- Co., 112 N. Y. 263; Langdon v. son v. United States, 100 Fed. Rep. Mayor, etc., 93 id. 129, 155; Scranton 714. V. Wheeler, 179 U. S. 141 ; Illinois ^ Monongahela Nav. Co. v. United Central Railroad v. Illinois, 146 id. States, 148 U. S. 312; United States v. 387, 457, 458 ; Coxe v. State, 144 N. Y. Moline, 82 Fed. Rep. 592 ; People v. 396; Sage V. Mayor, 154 id. 61, 73; cf. N. Y. & S. I. F. Co., 68 N. Y. 71, 78; People V. N. Y. & S. I. Ferry Co., 68 Jencks v. Miller, 17 Misc. Rep. 461,' id. 71, 76 ; Moore, " Foreshore," p. 463 ; 14 App. Div. 474. 638; People V. Vanderbilt, 26 N. Y. «i Scranton v. Wheeler, 179 U. S. 287 292, 293; Knickerbocker Ice Co. 141. V. Forty-second St. R. R. Co., 176 id. «2 Roe v. Strong, 107 N. Y. 350, 360; 408, 417. People ex rel. Howell v. Jessup, 160 "8 Egan V. Hart, 165 U. S. 188, 192 ; id. 249, 254. Shively v. Bowlby, 152 id. i, 33, 40; 63 Northern Pacific Ry. Co. v. United Pollard's Lessee v. Hagan, 3 How. States, 104 Fed. Rep. 691. 212, 230. ®* Carvalho v. Brooklyn & J. B. "9 23 U. S. Stat, at Large, 147, 148 ; Turnpike Co., 56 App. Div. 522 ; 24 id. 329; 25 id. 209; 26 id. 426, i 4; Dimon v. Shewan, 34 Misc. Rep. 72. 27 id. 88, no; 28 id. 338, 360; 29 id. 94 Littoral Proprietors. to owners of neighboring docks, as the common-law rule of lateral support, if applicable at all to lands under water, does not apply to superstructures."* Where the land under water is granted for the purpose of pro- moting the commerce of the State, a dock erected thereon is subject to pubHc user on payment of reasonable compensation.*® Rights of Littoral Proprietors. The rights of proprietors, bordering on the seashore, are not dissimilar to the rights of riparian pro- prietors.®^ Their upland in the absence of metes and bounds runs to high-water mark only, for the State owns and controls the land under the sea up to that mark, subject to the jus publicum,^ and to the power of Congress to regulate commerce on navigable waters or the high seas.®^ The Foreshore. The Crown at common law presumptively owned the foreshore, or the land under water between high-water mark and low-water mark.™ But in a learned treatise, the validity of this presumption is questioned in view of the many grants of ancient seacoast manors.''^ Moore's work may be profitably consulted in connection with riparian or littoral questions connected with Crown grants of ancient manors and towns in New York,''^ under which the State succeeded to the rights of the Crown. Water Courses. Riparian proprietors are entitled, in the absence of grant, license or prescription, to have the stream which waters their lands flow without material alteration or diminution.''* And this right is not an easement but is parcel of the land.''* 66 White V. Nassau Trust Co., i68 ''^ Moore, History and Law of the N. Y. 149. Foreshore and Sea Shore. 68 Thousand Island Steamboat Co. ''^ Cf. De Lancey v. Piepgras, 138 V. Visger, 86 App. Div. 126, 179 N. Y. N. Y. 26, 36, 37. 206. Cf. Knickerbocker Ice Co. v. ''* Gould on Waters, § 204, and Forty-second St. R. R. Co., 176 N. Y. cases there cited; also Smith v. City 408. of Rochester, 38 Hun, 612; affd., 104 e'^Mulry v. Norton, 100 N. Y. 424, N. Y. 674; Neal v. City of Rochester, 437- 156 id. 213; Amsterdam Knitting Co. esShively V. Bowlby, 152 U. S. I, 9, v. Dean, 13 App. Div. 42; Duesler 20; Murphy v. City of Brooklyn, 98 v. The City of Johnstown, 24 id. 608; N. Y. 642, 644; De Lancey v. Piep- Gallagher v. Kingston Water Co., 25 gras, 138 id. 26, 36; Coxe v. State, 144 id. 82; Lakeside Paper Co. v. State, 15 ''^- 396. id. 169; Covert V. City of Brooklyn, eo Supra, p. 93- 6 id. 73; Strobel v. Kerr Salt Co., 164 TO Hale, De Jure Maris. Cap. IV. n. Y. 303; Brown v. Ontario Talc Fisheries, etc. 95 Use of Stream. Every riparian proprietor may make a reasonable use of the stream passing by his land, even to the extent of diminish- ing the flow if such use is reasonable.^^ But an unauthorized diver- sion of the stream will be restrained by injunction if need be.™ So a pollution of the stream." The doctrine that relaxes the above rules in favor of great modern industrial establishments has no place in New York.'^* Fisheries, Right of Piscary. Although the Crown in the colonial epoch might grant an exclusive right of fishery,™ yet such ex- clusive right does not arise by implication from a colonial grant, when the stream is navigable, and, since the enactment of the Constitution of the State, there is no power to grant an exclusive right of fishery in such waters.*" But proprietors of the beds of non-navigable streams have, independently of statute, an exclusive right of piscary and the public have no common of piscary in such streams.*^ Underground Waters, Wells, etc. An action lies in some rare cases to prevent or redress the diversion of underground waters by a neighboring proprietor;*^ although the general principle is dis- tinctly to the contrary,*' and an owner of land may divert an under- Co., 8i App. Div. 273 ; Pierson v. ''* Strobel v. Kerr Salt Co., 164 N. Speyer, 82 id. 556; Penryhn Slate Y. 303. Co. V. Granville Elec. L. Co., 84 id. ™ Trustees of Brookhaven v. Strong, 92; Comrs. of Canal Fund v. Kemp- 60 N. Y. 56. shall, 26 Wend. 404 ; Stauden v. New *" Slingerland v. International Con- Rochelle Water Co., 91 Hun, 272; tracting Co., 43 App. Div. 215. Colrick V. Swinburne, 105 N. Y. 503 ; *i Rockefeller v. Lamora, 85 App. Pierson v. Speyer, 178 id. 270. Div. 254. T* Pine V. Mayor, etc., of New York, *2 Reisert v. City of New York. 174 103 Fed. Rep. 337 ; Strobel v. Kerr N. Y. 196, 200 ; Smith v. City of Brook- Salt Co., 164 N. Y. 303. lyn, 18 App. Div. 340; 160 N. Y. 357; 75 Prentice v. Geiger, 74 N. Y. 341 ; Westphal v. City of New York, 75 Herman v. Roberts, 119 id. 37; Strobel App. Div. 252; Forbell v. City of New v. Kerr Salt Co., 164 id. 303; Wood- York, 27 Misc. Rep. 12; 47 App. Div worth v. Genesee Paper Co., 18 App. 371 ; 164 N. Y. 522 ; cf. Covert v. City Div. 510, 512; Robinson v. Robinson, of Brooklyn, 6 App. Div. 73, 74; Jager 47 id. 405. V. City of New York, 75 id. 258; 78 Pine V. Mayor, etc., of New York, Kinsey v. City of New York, 75 id. 103 Fed. Rep. 337, 339; 112 id. 98. 262; Sposato v. City of New York, 75 77 Mann v. Willey, 51 App. Div. id. 304. 169 ; Sammons v. City of Gloversville, 83 Trustees of Village of Delhi v. 81 id. 332. Tonemans, 45 N. Y. 362; Johnston 96 Drainage, etc. ground stream for his ordinary purposes, but not for public uses.** Rain FaU. So long as the owner of land leaves it in its natural condition, he is not required to adopt any measures to prevent flow- age on adjoining land.^ But when he puts a structure on the land he must care for the construction so as not to discharge the rain collected from the building on a neighbor's land.** Drainage. At common law the rule of the civilians that the lower proprietor is bound under all circumstances to receive and permit the natural flow of surface water from the land above him does not prevail.*'^ The General Drainage Act of this State** regulates the drain- ing of swamps and other low and wet lands.*® But it is to be ob- served that chapter 384, Laws of 1895, enacted pursuant to sec. 7, aft. I, Const, of 1894, has been held invalid.®" Lands Formed in Oceans, Rivers and Streams. Lands formed by accre- tion or reliction belong to the littoral or riparian proprietor, if contiguous to his upland or shore line.®^ Real Property. The term " real property " denotes that dominion over lands, tenements and hereditaments which the common law protected and the law of this State now recognizes and defends. As a term of law " real property " is contrasted with " personal property," and denotes a historic division recognized by the com- mentators and even by the jurisprudence of this country and England. By the Statutory Construction Law, the term " real property " is coextensive with real estate, lands, tenements, here- Cheese Mfg. Co. v. Veghte, 69 id. 16; Mann v. Retsof Mining Co., 49 App. Phelps V. Nowlen, 72 id. 39; Blood- Div. 454; Garrett v. Wood, 35 Misc. good V. Ayres, 108 id. 400. Rep. 397. 8* Forbell v. City of New York, 47 ** 2 R. S. 548, chap. 888, Laws of App. Div. 371* 164 N. Y. 522; Reisert 1869; chap. 259, Laws of 1888; chap. V. The City of New York, 35 Misc. 321, Laws of 1892 ; chap, 410, Laws of Rep. 413 ; 69 App. Div. 302. 1892 ; chap. 384, Laws of 1895. 85 Vanderwiele v. Taylor, 65 N. Y. *9 Matter of Town of Penfield, 3 341. App. Div. 30. 88 Davis V. Niagara Falls Tower so Matter of Tuthill, 163 N. Y. 133. Co., 171 N. Y. 336, 339. 91 Mulry v. Norton, 100 N. Y. 424; 8TBarkIey v. Wilcox, 86 N. Y. 140; St. Louis v. Rutz, 138 U. S. 226, 250; Egener v. N. Y. & Rockaway Beach Widdicombe v. Rosemiller, 118 Fed. Co., 3 App. Div. 157; Schreiber v. Rep. 295. Driving Club, 17 Misc. Rep. 131 ; / / Vested Rights. 97 ditaments, corporeal and incorporeal.®^ But in this chapter of this act, the term is a shade more limited.®^ Saving Clause. The general saving clause of this section,®* sav- ing all vested rights and the construction of any conveyance, will, or other instrument, effected before the passage of this act, was drafted for more abundant precaution, as the act itself could not have been retroactive in operation®^ so as to impair vested rights or estates. 82 See Statutory Construction Law, ner, 8 Wend. 66i ; Brewster v. chap. I, § 3, General Laws; enacted Brewster, 32 Barb. 428; Sanford v. chap. 677, Laws of 1892. Bennett, 24 N. Y. 20; 44 id. 258; 93 § I, The Real Prop. Law. Westervelt v. Gregg, 12 id. 202; cf. 9* § I, The Real Prop. Law. Const. U. S., art. I, § 10 and amend- 95 Dwarris, Stat. 75 ; Dash v. Van ment 14th ; De Peyster v. Clendening, Kleeck, 7 Johns. 477; Sayre v. Wis- 8 Paige, 295, 304. 7 98 Capacity to Hold Real Property. § 2. Capacity to hold real property. — A citizen of the United States is capable of holding real property within this state, and of taking the same by descent, devise or purchase. Formerly i Revised Statutes, 719, section 8: § 8. Every citizen of the United States is capable of holding lands within this State, and of taking the same by descent, devise or purchase.^ Federal Law. This section is declaratory of a right embodied in the supreme Federal lavif.®^ Prior to Independence a naturalized or a native-born citizen of a British colony could take and hold lands in any other of the Crown dominions for he was a subject of the common king, and his status related to the empire and not to any portion of it.®^ The Articles of Confederation perpetuated this capacity.^'' Thence, it passed into the National, or Federal, Constitution and became organic.^ Citizenship under Federal Enactments. Since the ye; r 1790, the Fed- eral government has exercised the sovereign power of naturaliza- tion,^ delegated by the Constitution.^ As this delegated power is exclusive, when it has once been exercised by Congress, the States cannot now convert an alien into a citizen of the United States by process of naturalization.* For some Federal purposes a dis- tinction is made between citizens of the United States and citizens of a State of the United States.^ Citizens of the United States. The Federal law for the purposes of real property now determines who are " citizens of the United States."® Citizens of the United States are those, (i) who remained 96 Repealed, chap. 547, Laws of 1896. 2 Lynch v. Clarke, i Sandf. Ch. 583, 97 Art. IV, U. S. Const. ; Campbell 645 ; Ludlam v. Ludlam, 26 N. Y. 356, v. Morris (Md.), 3 H. & McH. 535; 360; U. S. R. S., §§ 2165-2174. Ward V. Morris, 4 id. 330 ; People ex 3 Art. I, § 8, subd. 4. rel. Turner v. Plimley, 17 Misc. Rep. * XVI U. S. Stats, at Large, 254, 457, 459- 256; Chirac v. Chirac, 2 Wheat. 259; 98 Calvin's Case, 7 Rep. i; Pollock U. S. v. Villato, 2 Dall. 370; Dred & Maitland, Hist. Eng. Law, I, 441 ; Scott v. Hanford, 19 How. 393 ; Mat- Burton, Real Prop., Appendix, 501 ; 23 thews v. Ray, 3 Cranch C. C. 699 ; Am. Law Rev. 762, 763 ; 30 id. 241. Golden v. Prince, 3 Wash. C. C. 314. 99 Art. IV. 5 Slaughter House Cases, 16 Wall. lArt. IV, § 2; 2 Story Const., 73; Amendment XIV, U. S. Const. § i8o6 ; Lynch v. Clarke, i Sandf. Ch. « Ludlam v. Ludlam, 26 N. Y. 356, 583,' 645. 360 ; Comitis v. Parkerson, 56 Fed. Rep. 556, et ut supra. Who May Hold Real Property. 99 citizens of any State, after a reasonable time from the outbreak of hostilities, in 1775, with England.'^ (2) All persons born in the United States and not subject to any foreign power, excluding Indians not taxed.* Indians born within the territorial jurisdiction of the United States occupy a peculiar status. By an abandon- rtient of tribal subjection, coupled with the payment of a tax to the support of government, they may become ipso facto citizens;* or they may be naturalized.^* (3) All those free whites and Africans whom the sovereignty of the United States has clothed with citizen- ship by naturalization,^^ or adoption,'^ and who remain subject to the jurisdiction thereof.^* (4) By statute an alien woman, possess- ing capacity for citizenship, who intermarries with a citizen of the United States, either here or abroad, thereby becomes a citizen of the United States, no matter where she may reside.^* So the wife of an alien who is naturalized ipso facto becomes a citizen.*^ ■^ The authorities on this branch are collated at p. 76, Fowler, " Histy. of Real Prop, in New York." Lynch v. Clarke, i Sandf. Ch. 583, 645; Minor V. Happersett, 21 Wall. 162, 167. 8 § 1992, U. S. R. S. ; § 2171, U. S. R. S.; Amendment XIV to U. S. Const. ; Slaughter House Cases, 16 Wall. 36, 72; In re Look Tin Sing, 21 Fed. Rep. 905 ; In re Wong Kim Ark, 71 id. 382; s. c, 169 U. S. 649; 186 id. 200; Sing Tuck v. United States, 128 Fed. Rep. 592. And see an article in 30 Am. Law Rev. S3S ; In re Giovanna, 93 Fed. Rep. 659; U. S. V. Jue Wy, 103 id. 795 ; U. S. v. Leung Sam, 114 id. 702, and Van Dyne, " Citizenship of the United States," passim, chap. I. 9 Amendment XIV, Fed. Const. ; I 1992, U. S. R. S. ; U. S. V. Elm, 23 Int. Rev. Rec. 419; Elk v. Wilkins, 112 U. S. 94. 1" See the acts referred to in Elk v. Wilkins, 112 U. S. 103, 104. 11 Amendment XIV to U. S. Const. ; §§2165-2169, U. S. R. S. Mexicans are included ; In re Rodriguez, 81 Fed. Rep. 337- 12 § 2172, U. S. R. S. ; Boyd v. Ne- braska ex rel. Thayer, 143 U. S. 135; Burton v. Burton, i Keyes, 359; Kelly V. Owen, 7 Wall. 496. 13 Comitis V. Parkerson, 56 Fed. Rep. 556. These words intended to exclude children of diplomatic per- sonages, or consuls, or aliens. Slaughter House Cases, 16 Wall. 36. On the subject of naturalization, con- sult Van Dyne, " Citizenship of the United States," chaps. I-VII, part II. 1* Act of Congress of Feb. 10, 1885, U. S. R. S., § 1994; Wainwright v. Low, 132 N. Y. 313; Kelly v. Owen, 7 Wall. 496; Halsey v. Beer, 52 Hun, 366; People v. Newell, 38 id. 78; Luhrs V. Eimer, 80 N. Y. 171; Tsoi Sim V. United States, 116 Fed. Rep. 920. There was an act in England in 8 Henry V (see Lewis Bowles' Case, Tudor, Lead. Cas. Real Prop. 73), en- abling alien women, married to Eng- lishmen, to have dower. « 14 Op. U. S. Atty.-Gen. 402 ; U. S. R. S., § 1994. But see 33 Am. Law Rev. 69, and cases cited. 100 Sources of Citizenship. That a citizen woman, by intermarriage with an alien, becomes under our law, an alien, is not so clear.^* Corporation. A foreign corporation is not a citizen within the meaning of this section of The Real Property Law.-^'' Sources of Citizenship. There are now but three sources of citizen- ship in the United States — birth,^* marriage^® and naturalization,^ and the latter is limited in its application to free white persons and those of African nativity, or descent.^^ The general naturaliza- tion laws have no application to Mongolians, including Japanese, or to those of half white and half Indian blood.*^ The naturaliza- tion of an alien already married operates to naturalize his free, white wife** and resident minor children.^ The children of alien tourists, denizens or commercial agents, in itinere, or animo rever- tendi domitm, who are not fully subject to the sovereignty and al- legiance of the United States, are not citizens by birth, though born within the United States.*' 16 Comitis V. Parkerson, 56 Fed. Rep. 556; 31 Am. Law Rev. 504, 50.5; cf. Wadsworth v. Wadsworth, 12 N. Y. 376 ; Ludlam v. Ludlam, 26 id. 356 ; Van Dyne, " Citizenship of the United States," 127; Shanks v. Dupont, 3 Pet. 242; sed cf. Ruckgaber v. Moore, 104 Fed. Rep. 947; Geofroy v. Riggs, 133 U. S. 258. 1'' Duquesne Club v. Penn Bank of Pittsburgh, 35 Hun, 390; cf. Paul v. Virginia, 8 Wall. 181 ; Connor v. Elliott, 18 How. 591; Lafayette Ins. Co. V. French, Id. 407; Ducat v. Chicago, ID Wall. 410. 18 Amendment XIV, U. S. Const. " Citizenship by birth " is the sub- ject of several important papers in volumes 29 and 30, American Law Re- view (XXIX, p. 38s ; XXX, pp. 241, 3SS and cases and authorities there cited). U. S. V. Wong Kim Ark, 169 U. S. 649; In re Look Tin Sing, 21 Fed. Rep. gos ; Sing Tuck v. United States, 128 id. 592; U. S. V. Leung Sam, 114 id. 702. The immigration officials in 1899 in Washington ruled that chil- dren born in the United States of alien parents and taken abroad as in- fants should, on their return, be ad- judged aliens. Cf. Van Dyne, " Citi- zenship of the United States," passim. 19 Supra, p. 99. 2»3i Am. Law Rev. 598; Elk v. Wilkins, 112 U. S. 94, lOi; 14th Amend. Fed. Const. ; Story Confl. of Laws, § 48; cf. Bacon Abr., tit. "Alien," but see female's marriage with citizen, supra, p. 99, and " Col- lective Naturalization," p. 102. 21 § 2169, U. S. R. S. 22 § 2169, U. S. R. S. ; Re Ah Yup, 5 Saw. 155 ; Re Camille, 6 id. 541 ; Re Yamashita, 59 L. R. A. 671. 23 Boyd V. Nebraska ex rel. Thayer, 14s U. S. 13s; Burton v. Burton, i Keyes, 359; Kelly v. Owen, 7 Wall. 496; § 1994, U- S. R. S.; 14 Op. U. S. Atty.-Gen. 402; Webster, Laws of Naturalization, 75, and cases cited. Cf. 33 Am. Law Rev. 869. 24 People V. Newell, 38 Hun, 78; U. S. R. S., § 2172; Renner v. MuUer, 44 N. Y. Super. Ct. 535 ; § 2172, U. S. R. S. ; 14 Op. U. S. Atty.-Gen. 402. 25 Slaughter House Cases, 16 Wall. Expatriation. 101 Nativity not a Final Test. Foreign birth is not now conclusive of alienage, for children of citizen parents, or of a citizen father, though born out of the limits and territorial jurisdiction of the United States, are to be considered citizens of the United States f^ nor is birth within the United States conclusive of citizenship in the case of the legitimate children^'^ of diplomatic or consular alien personages, for such children are in legal contemplation born exterritorially, or within the allegiance and diplomatic jurisdiction of the parents' sovereign.^* Presumptions of Law. The status of " alien " or citizen once fixed is presumed to continue until the contrary be shown,^® except in the case of deserters.^** But an alien does not cease to be such by merely declaring his intention of becoming a citizen of the United States.31 Expatriation; Perpetual Allegiance. Irrespective of treaty, the inher- ent right of citizens of the United States to expatriate themselves and renounce their allegiance to the United States ought to be very clear, in view of the pronounced position of Congress on the right of foreigners to expatriate themselves.^^ But it is not so; the doctrine of perpetual allegiance of American citizens being 36, 73 ; 29 Am. Law Rev. 391 ; 30 id. Fed. Rep. 905 ; Slaughter House 246, 247, 535 ; 23 id. 759; 31 id. 504; Cases, 16 Wall. 36, 73; 30 Am. Law cf. Opins. Atty.-Gen. of U. S., X, 328 ; Rev. 242, 243 ; Geofroy v. Riggs, 133 In re Wong Kim Ark, 71 Fed. Rep. U. S. 258, 264. 382 ; Lynch v. Clarke, i Sandf . Ch. ^9 Hauenstein v. Lynham, 100 U. S. 583 ; U. S. V. Wong Kim Ark, 169 U. 483 ; Charles Green's Son v. Salas, 31 S. 649. Rule of immigration officials Fed. Rep. 6; Lumley v. Wabash Ry. in 1899. Co., 71 id. 21 ; cf. Boyd v. Thayer, 143 28 Act of Congress of January 2g, U. S. 135, as to what proof rebuts 1795; §§ 1993, 2172, U. S. R. S. ; U. presumption. S. v. Gordon, 5 Blatchf. 18; Ware v. so §§ 1996, 1997, 1998, U. S. R. S. ; Wisner, 50 Fed. Rep. 310; Lynch v. chap. 172, N. Y. Laws of 1872. Clarke, i Sandf. Ch. 583 ; Opins. of ^i jn re Moses, 83 Fed. Rep. 995. Atty.-Gen. of U. S., X, 329; cf. 30 32 XV, U. S. Stats, at Large, 223, Am. Law Rev. 245 e< jfg.; Van Dyne, 254; U. S. R. S., § 1999; Charles " Citizenship of the United States," Green's Son v. Salas, 31 Fed. Rep. chap, 11. 106; Jennes v. Landes, 84 id. 73; 23 2T The political status of an illegiti- Am. Law Rev. 769 ; 30 id. 243 ; 31 id. mate child is that of the mother. 504, 505; 37 Am. Law Rev. 191 ei ** Lynch v. Clarke, i Sandf. Ch. seq.; Ruckgaber v. Moore, 104 Fed. 583, 658; In re Look Tin Sing, 21 Rep. 947. 102 Naturalization. strenuously held in former cases.^^ Since 1868, exchange of na- tionality is however obligatory on the United States by treaties with foreign powers which concede this right. What Law Determines Citizenship. In the absence of any law or decision of the United States, governing the particular case, the common law is, in New York, to determine, irrespective of English statutes, whether or not one is an alien or a citizen of the United States.^* Naturalization. Naturalization is a judicial act of record, and it can be proved by the record only,^* and not by parol.^® Collective Naturalization. Naturalization may be also by a collec- tive process, such as annexation of a foreign State or territory. But if the treaty of annexation provide that Congress may determine the status of the inhabitants, annexation does not ipso facto make them citizens.^''' Disabilities of Aliens by Common Law. The disabilities of aliens to take and to hold lands and real property in this State are due to the common law and the authority given it by the State Consti- tution.^^ But this statement is subject to one exception; a devise to an alien is void by statute.^^ 33 Comitis V. Parkerson, 56 Fed. Opins. of Pothier, Felix and Heftncr, Rep. SS6; Opin. N. Y. Atty.-Gen. for Wheaton, Elements Internat. Law, Appendix, 631. But this rule is af- fected by the terms of the annexa- tion. Cf. Harv. Law Rev. for iSgg; Coutzen V. United States, 179 U. S. 191 ; In re Gonzales, 118 Fed. Rep. 941 ; reversed, 192 U. S. i ; 32 Am. Law Rev. 433 ; Downes v. Bidwell, 182 U. S. 244, 283 ; Van Dyne, " Citi- 1868, p. 380; Beck V. McGillis, 9 Barb. 35, 49; Shanks v. Dupont, 3 Pet. 242, 246; 2 Kent Comm. 43 et seq.; Lud- 1am v. Ludlam, 26 N. Y. 356; 37 Am. Law Rev. igi et seq.; cf. Pequiguot v. Detroit, 16 Fed. Rep. 211. 3* 30 Am. Law Rev. 241 ; Ludlam v. Ludlam, 26 N. Y. 356; Lynch v. Clarke, i Sandf. Ch. 583; cf. Bacon zenship of the United States," part Abr., tit. "Alien," as to definitions at II, chap. 4, passim. common law of citizen and alien, and Luhrs V. Eimer, 80 N. Y. 171. 3B Charles Green's Son v. Salas, 31 Fed. Rep. 106; U. S. v. Gleason, 78 id. 396; Pintsch Compressing Co. v. 38 Hansard on Aliens, 131; i Black. Comm. 366; 2 id. 249; 23 Am. Law Rev. 762, 768, 769 ; 30 id. 241 ; Lud- lam V. Ludlam, 26 N. Y. 356; cf., § 5, The Real Prop, Law, formerly i R. S. Bergin, 84 id. 140; In re Fronascone, 720, § 17; Wright v. Sadler, 20 N. Y. 99 id. 48; Ruckgaber v. Moore, 104 320. The remote origin of the dis- id. 947, 949. abilities of aliens in all systems of 36 Cf. Boyd V. Thayer, 143 U. S. law is discussed in Prof. Bernheim's 135 ; McCarthy v. Marsh, 5 N. Y. 263, History of the Law of Aliens (N. Y., 284; Fay V. Taylor, 31 Misc. Rep. 32. 1885). 37 Boyd V. Thayer, 143 U. S. 135 ; 39 yidc infra, pp. 103, 104. Aliens. 103 Removal of Disabilities. As the Legislature has the reserve power to alter the common law, it has, in many instances, removed the disabilities from particular aliens.*" Escheat. The common law " escheat," which the State enforces against aliens who hold lands, is not of purely feudal origin ; it grew out of national policy." This remote origin of the disabili- ties of aliens produced the distinction noted in the next paragraph. Distinction between the Taking and the Holding of Lands. A distinction is always to be made, under the common law, between the taking and the holding of lands by aliens.*^ An acquisition by an alien through purchase (which includes every mode, except descent, by which property can be acquired^) was not void at common law, but only a cause of forfeiture.** The estate of an alien acquired by purchase could even be protected by action.*" The estate vested in him until office found,*® and could be conveyed by him subject to being divested on the recording of the inquisition.*'' But at common law an alien could not inherit.** Devises to Aliens when Void, unless Deposition Filed. The Revised Statutes changed the former or common-law rule, and made de- vises to an alien, living at the time of testator's death, void.*® 40 See the statutes and cases ad- *5 Nolan v. Command, 1 1 Civ. Proc. judged, cited pp. 189-197, "History Rep. 295; Craig v. Leslie, 3 Wheat, of the Law of Real Property in New 563, 589- York," and the cases cited infra un- *6 Jackson v. Lunn, 3 Johns. Cas. der § s, The Real Prop. Law. 109 ; People v. Conklin, 2 Hill, 67 ; *^Cf. 2 Black. Comm. 249, 252; i Munro v. Merchant, 28 N. Y. 9; id. 258 ; Bernheim, Hist, of the Law Goodrich v. Russell, 42 id. 177 ; of Aliens, 124, 125 ; 23 Am. Law Rev. Wright v. Sadler, 20 id. 320, 328 ; 769 ; 29 id. 386 ; Chitty, Prerog. of Wadsworth v. Wadsworth, 12 id. 376 ; Crown, 21S ; Goodrich v. Russell, 42 Stamm v. Bostwick, 122 id. 48. N. Y. 177; Lee, Abstracts of Title, *t Griffeth v. Pritchard, s Barn. & 202. Aid. 76s, 780 ; 2 Kent Comm. 61 ; cf. i *2Hall v. Hall, 81 N. Y. 130. R. S. 719, § 9; § 7, The Real Prop. *3 See Stamm v. Bostwick, 122 N. Y. Law. 48 ; McCartee v. Orphan Asylum, 9 ** See under § s, infra. Cow. 491-495; Daly v. Beer, 32 N. Y. *» 2 R. S. 57, § 4; Mick v. Mick, 10 St. Repr. 1064; Callahan v. O'Brier, Wend, 379; Wadsworth v. Wads- 72 Hun, 216, 220, for a clear definition worth, 12 N. Y. 376; Downing v. of " purchase." Marshall, 23 id. 366, 37s ; Hall v. Hall, **2 Black. Comm. 293; Craig v. 81 id. 130; Beekman v. Bonsor, 23 id. Leslie, 3 Wheat. 563, 588; Smith v. 298, 316; Van Courtland v. Nevert, 11 Smith, 70 App. Div. 286. N. Y. Supp. 148, 152 ; McGillis v. Mc- GilHs, IS4 N. Y. 532, 540. 104 Relief of Aliens. This provision was an augmentation, rather than a diminution, of the common-law disabiHties of ahens, and was soon changed by statute,^" so as to enable a resident alien to devise lands and a male resident alien devisee to take and hold lands on filing a de- position of an intention to become a citizen of the United States." This obligation to file a deposition did not apply to alien females.^* The exemption of aliens has now been further enlarged by the act enabling any alien citizen of a State or nation conferring like privileges on citizens of the United States, to take by devise and hold and convey real estate in this State.^^ The Act of 1897. Chapter 593, Laws of 1897,^* operates to give capacity to take, hold and convey real property within this State to a large proportion of the world's population, and consequently essentially alters the law which forbade aliens from taking and holding real property here. — This act is as follows : " An act to enable certain aliens to take, hold and convey real estate." " Section i. Any citizen of a State or nation which, by its laws, confers similar privileges on citizens of the United States, may take, acquire, hold and convey lands or real estate within this State, in the same manner and with like effect as if such persons were, at the time, a citizen of the United States ; provided, however, that nothing in this act contained shall affect the rights of this State in any case in which proceedings for escheat have been or may be instituted before the passage of this act. § 2. This act shall take effect immediately." The effect of this act is to make it clear that all the subjects of Great Britain and most other European States^ have the capacity of citizens in respect of real property within this jurisdiction.^* In some cases treaties had already conferred such rights on foreign- soWadsworth v. Wadsworth, 12 N. Smith, 70 App. Div. 286. Vide infra, Y. 376; Marx v. McGlynn, 88 id. 357, under § s, The Real Prop. Law. 376. ^2 Smith V. Reilly, 31 Misc. Rep. 701. Bi Chap. IIS, Laws of 1845; ^^Xlha^p. 593, Laws of 1897; Fay v. amended, chap. 261, Laws of 1874; i Taylor, 31 Misc. Rep. 32; Geofroy v. R. S. 720, § IS ; Hall V. Hall, 81 N. Y. Riggs, 133 U. S. 258. 130; cf. Marx V. McGlynn, 88 id. 376; ^4 Became a law May 19, 1897, with chap. 207, Laws of 1893; §§ 4, s, The the approval of the governor. Real Prop. Law ; chap. 38, Laws of ^^ See as to France, Geofroy v. 187s ; Kelly v. Pratt, 41 Misc. Rep. 31 ; Riggs, 133 U. S. 2s8. Smith V. Reilly, 31 id. 701; Smith v. ^o pgy y Taylor, 31 Misc. Rep. 32. Insular Provinces. 105 ers," and then this act is declaratory only. But where a treaty does not confer the right and a foreign State does permit Ameri- cans to take real property within its territory then its citizens may take and hold in New York under this act. Hawaiians, Porto Ricans and Filipinos. At the present time, citizens of the newly annexed insular provinces occupy a peculiar status. They are neither citizens nor aliens, but are under the protection of the United States.^^ ST Geofroy v. Riggs, 133 U. S. 258. States," passim, and Gonzales v. Wil- ^^ Vide supra, p. 102. " Collective liams, immigration commissioner, 192 Naturalization," and consult Van U. S. I. Dyne, " Citizenship of the United 106 Capacity to Transfer Real Property. § 3. Capacity to transfer real property — A person other than a minor, an idiot, or person of unsound mind, seized of or entitled to an estate or interest in real property, may transfer such estate or interest. Formerly i Revised Statutes, 719, section 10: § 10. Every person capable of holding lands, (except idiots, persons of unsound mind, and infants), seized of, or entitled to, any estate or interest in lands, may alien such estate or interest at his pleasure, with the effect, and subject to the restrictions and regulations provided by law.^^ History of this Section. The section of the Revised Statutes now re-enacted was taken from an older statute of this State,^ which in terms owed its enactment to the fundamental revision by Jones and Varick of the great English statutes presumed to have ex- tended to New York before its independence,®' and to have been adopted by the first Constitution of the State.®^ The English statutes thus re-enacted were not new laws, but old laws dressed in a more suitable garb and adapted to the new order of things.** Messrs. Jones and Varick, authors of the revision of 1789, took the original of the section in question from the statute commonly called Quia Emptores terrarum.^ The history of a tenant's power to alienate his lands has been already indicated at length in the Introductory Chapter*^ and need not be repeated. The comple- ment of this section is now found in article I of the Constitution : " all fines, quarter sales, or other like restraints upon alienation, reserved in any grant of land hereafter to be made, shall be void."^ The Statute of Quia Emptores has now been firmly held to have been in force in the province of New York, the intimation to the contrary being rejected.®'' Restraints on Alienation. By the common law certain restraints on the power of alienation are void as repugnant to the estate B9 Repealed, chap. 547, Laws of 1896. ^4 jg Edw. I; 2 Inst. 500; vide su- 60 I R. L. 70, § I ; Id. 74, § 5. pra, p. 14. "2 J. & V. 67; Id. 68. ^^ Supra, pp. 10, 11, 12, 13. 62 § 2S, Const, of 1777. «6 Supra, p. 78. 83 Corning v. McCuUough, i N. Y. e^ Supra, p. 14 ; Van Rensselaer v. 64; People V. Clarke, 9 id. 349, 362; Hayes, 19 N. Y. 68; cf. De Peystet' v. Van Rensselaer v. Hayes, 19 id. 74; Michael, 6 id. 467, and see observa- Jackson v. Schutz, 18 Johns. 186; 4 tion, p. 83, note 37, on the Statute of Kent Comm. 494. Note of Revisers Quia Emptores. to part 2, chap, i, tit. i, art. i, R. S. Capacity to Transfer Real Property. 107 granted.*® Restraints on alienation are now prohibited also by our statute directed against perpetuities f^ regulated by the unrepealed portion of the common law relating to persons non sui juris/'* and forbidden by the constitutional prohibition given above.'^' This section of the present act is of historical interest, being a mutilated survival of the old Statute of Quia Emptores, with the portion relating to tenures obliterated.''^ What Estates and Interests Transferable. What estates and interests are transferable and by whom are denoted in a subsequent place.''* Interpretation of Section 3, Supra. In so far as this section of The Real Property Law is now concerned, it is sometimes regarded as auxiliary.''* But in the case of married women's property it was at one time cited as an enabling act.''® The notable change in the language of the Revised Statutes,''* made by this section of The Real Property Law,''^ is contradicted by the note of the Statu- tory Revision Commission — that it is unchanged in substance.''^ The section in the Revised Statutes, it will be observed, limited its own application to persons capable of holding lands. The present revision changes this language to " a person * * * seised of or entitled to an estate or interest in real property." Seisin in modern law simpliciter means ownership of an estate of freehold.''* In feudal law it meant the investiture of the tenant, whereby he was admitted into possession of the feud.^" At one time it referred to a possession protected by the Assizes.*^ It thus came to mean possession of a freehold estate.®^ It now refers to an estate, 68 Vide infra, p. 108, under this ''^ i R. S. 719, § 10. section. ''^ § 3, supra. 8* § 32, The Real Prop. Law. ''* Vide Appendix I, note to § 3. ""* Infra, under this section. ''9 Matter of Dodge, 105 N. Y. 585, ^1 Supra, p. 78. 591 ; et vide infra under §§ 280, 281, ^2 See Const., art. i, § 14, supra, p. The Real Prop. Law. 78. 80 Jackson ex dem., etc. v. Demont, 73 Infra, article H, and see next 9 Johns, ss, 58 ; Vanderheyden v. page, " Restraints on Alienation." Crandall, 2 Den. 9, 22, 23. Sometimes "'^Sed cf. Freeborn v. Wagner, 49 it was applied even to possession of Barb. 43, 54 ; Wetmore v. Kissam, 3 terms of years. Williams on Seisin, 4, Bosw. 321, 327. citing Bracton and Littleton. 75 Dickerman v. Abrahams, 21 Barb. *i Holmes, London Law Quar., I, SSI ; Andrews v. Shaffer, 12 How. Pr. 168. 441,443. *2\YiIIiams on Seisin, s; Watkins, 108 Restraints on Alienation. not to lands,*'^ and is often used even in connection with chattels, as synonymous with possession.^ In this sense of the term seised, this section, as now framed, may, standing alone, enable aliens to transfer estates or interests in lands, and this irrespective of section 7 of this act.*^ Exceptions Made by this Section. This section excepts minors, idiots and persons of unsound mind. By the common law persons non sui juris are unable, of themselves, to transfer rights of prop- erty. Infants may not alien their lands, but may purchase, sub- ject to the right to disaffirm on their attaining majority.** Idiots,*^ and lunatics,^ labor under similar disability.*^ The law makes, in most cases, provision for the necessary alienation of the lands of persons thus situated, by means of trustees, guardians, curators and committees.^" Restraints on Alienation by Tenants in Fee Simple. A devise or grant in fee simple, or in tail, with a proviso that tenant shall not alien is void by the common law as repugnant to the estate granted.*' But a partial restriction not to sell for a particular time or to a particular person may be good,*^ if restricted to the legal limit of Descents, 40, 41 ; 2 Washburn, Real Prop, (ist ed.), 485; 2 Preston, Ab- stracts of Title, 282. *3 Van Rensselaer v. Poucher, 5 Den. 35. **Challis, 47, note. 85 Cf., § 7, The Real Prop. Law. *^ I Black. Comm. 465 ; 2 id. 291 ; cf. 2 Kent Comm. 235 et seq.; Chapin v. Shafer, 49 N. Y. 407, 412; Gillett v. Stanley, i Hill, 121 ; Conroe v. Bird- sail, I Johns. Cas. 127 ; Clapp v. Byrne, iSS N. Y. S3S; Eagan v. Scully, 29 App. Div. 617, and text under § 121, The Real Prop. Law, infra. 87 2 Black. Comm. 291 ; 2 Kent Comm. 450; Valentine v. Lunt, $1 Hun, S44 ; I Thomas, " Estates by Will," 47 et seq. 88 2 Black. Comm. 291 ; Delafield v. Parish, 25 N. Y. 9, 69; Hughes v. Jones, 116 id. 67; Blinn v. Schwarz, 177 id. 252. 89 The cases on this head are very fully collated in I Thomas, " Estates by Will," 47 et seq. And see Booth v. Fuller, 35 App. Div. 117. 90 Vide Girard, Titles to Real Es- tate, chaps. 25, 30. 91 Newkirk v. Newkirk, 2 Cai. 345 ; Schermerhorn v. Negus, i Den. 448; Roosevelt v. Thurman, i Johns. Ch. 220; Jackson v. Robins, 16 Johns. 537; Oxley V. Lane, 35 N. Y. 340, 346; De Peyster v. Michael, 6 id. 467, 490, overruling Jackson v. Schutz, 18 Johns. 174; McDonald v. Walgrove, I Sandf. Ch. 274; Snedeker v. Cong- don, 41 App. Div. 433; Brown v. Brown, 54 id. 6; Greene v. Greene, 125 N. Y. 506, 512. 92 Oxley V. Lane, 35 N. Y. 340, 347. Sed cf. Schermerhorn v. Negus, i Den. 448. Restraints on Alienation. 109 time.®* Restraint on alienation by tenant of fee farm is also bad."* Restraints on Alienation by Tenants for Life or Years. Certain cove- nants in restraint of alienation by tenants for life or years are held valid, although not implied or encouraged.®^ But an attempt to make an estate for life inalienable without any limitation over is void as repugnant to the estate granted.®' A limitation by a third person to one absolutely, with an invalid restriction upon alienation, must be distinguished from a limitation until alienation, and upon attempted alienation over to a stranger. In the latter case if the primary limitation is for life the limita- tion over is certainly valid ;®^ and in this State such a limitation of a fee until attempted alienation, and then remainder over to a stranger, may be valid, if within the rule against perpetuities.®* But such a settlement by a man on himself is invalid.®® ^^ Infra, § 32, The Real Prop. Law. Graw v. Clawson, 11 id. at p. 140; 9* Lunham's Estate, Ir. Rep., 5 Eq. Rome Exchange Bank v. Eames, 4 170; Strahan, Law of Property, 39. Abb. Ct. App. Dec. 83, 99. 98 De Peyster v. Michael, 6 N. Y. at 97 Marsden, Perpetuities, 7. p. 491; Livingston v. Stickler, 7 Hill, 98 §§ 40, 42, 43, 47, 129, The Real 2S3 ; Jackson v. Groot, 7 Cow. 285 ; Prop. Law ; Brewster v. Brewster, 4 Jackson v. Silvernail, 15 Johns. 278. Sandf. Ch. 22, 28. 96 Bramhall v. Ferris, 14 N. Y. 41, 99 Gray, Restraints on Alienation, 44; Hall V. Thompson, 5 Pai. 586; De § 90 seq. 110 Deposition. § 4. Deposition of resident alien — An alien who, pursuant to the laws of the United States, has declared his intention of becoming a citizen, and who is, and intends to remain, a resident thereof, may make a written deposition to such facts, before any officer authorized to take the acknowl- edgment or proof of deeds to entitle them to be recorded within the state. Such deposition must be certified by the officer before whom it is made, and may be filed in the office of the secretary of state, and when so filed, must be recorded by him in a book kept for that purpose. Such deposition shall be presumptive evidence of the facts therein contained. Formerly i Revised Statutes, 720, section 15, as amended by chapter 272, Laws of 1834: § 15. Any alien who has come, or who may hereafter come into the United States, may make a deposition or affirmation in writing before any officer authorized to take the proof of deeds to be recorded, that he is a resident of, and intends always to reside in the United States, and to become a citizen thereof, as soon as he can be naturalized, and that he had taken such in- cipient measures as the laws of the United States require, to enable him to obtain naturalization ; which shall be certified by such officer, and be filed and recorded by the secretary of state in a book to be kept by him for that purpose ; and such certificate, or a certified copy thereof, shall be evidence of the facts therein contained.! Interpretation of Section. As this section is merely permissive, the decisions bearing on its results are properly reserved for the en- abling section following, without which this section is incomplete, except as to a rule of evidence therein stated. Oath or Affirmation. An oath or an affirmation may be made to the deposition referred to in this section.^ Applies to Females. This section would seem to apply to females in a proper case. The Statutory Construction Law provides that words of the masculine gender include the feminine ;^ although the provision of the Revised Statutes as amended, making devises to aliens void, does not in the case of a devise require such a deposition by alien females.* 1 Repealed, chap. 547, Laws of General Laws, § 9, and see next sec- 1896. tion of this act. 2 Note to this section. Appendix I, * 2 R. S. 57, § 4, amended chap. 15, citing § 847, Code Civ. Pro. ; § 2165, Laws of 1845 ; chap. 38, Laws of 1875 ; U. S. R. S. Smith v. Reilly, 31 Misc. Rep. 701. 3 Chap. d'JT, Laws of 1892; chap. I, Sed cf. § 5, The Real Prop. Law. Aliens' Real Property. Ill § 5. When and how alien may acquire and transfer real property. — An alien may, for a term of six years after filing the deposition described in the last preceding section, take, hold, convey and devise real property. If such deposi- tion be filed, or such alien be admitted to citizenship, a grant, devise, contract or mortgage theretofore made to or by hirn is as valid and effectual as if made thereafter; provided, however, that a devise to an alien shall not be valid unless a deposition be filed by him, or he be admitted to citizenship, within one year after the death of the tes- tator, or if the devisee is a minor, within one year after his majority. If a person who has filed such a deposition dies within six years thereafter, and before he is admitted to citizenship, his widow is entitled to dower in his real property, and if he dies intestate, his heirs or the persons who would otherwise answer to the description of heirs, inherit his real property, upon such persons being ad- mitted to citizenship, or filing a deposition in their own behalf, within one year after such death, or if minors, within one year after their majority. If an action or pro- ceeding is commenced by the state to recover real prop- erty held by an alien, such action or proceeding shall be suspended upon the filing of such deposition, and the service of a certified copy thereof upon the attorney- general, and the payment of the costs to the time of such service. Formerly i Revised Statutes, 720, sections 16, 17 and 18, and i Revised Statutes, 721, section 19: § 16. Any alien who shall make and file such deposition, shall thereupon be authorized and enabled to take and hold lands and real estate, of any kind whatsoever, to him, his heirs and assigns forever, and may, during six years thereafter, sell, assign, mortgage, devise and dispose of the same, in any manner, as he might or could do if he were a native citizen of this state, or of the United States, except that no such alien shall have power to lease or demise any real estate, which he may take or hold by virtue of this provision, until he becomes naturalized.^ § 17. Such alien shall not be capable of taking or holding any lands or real estate, which may have descended, or been devised or conveyed to him previously to his having become such resident, and made such deposition or affirmation as aforesaid.^ § 18. When such alien shall die within six years after making and filing such deposition, intestate, leaving heirs inhabitants of the United States, 5 Repealed, chap. 547, Laws of 1896. ^ Repealed, chap. 547, Laws of 1896. 112 Disabilities of Aliens. such heirs shall take by descent, and hold any real estate of which such alien died seized, in the same manner as they would have inherited if such alien had been, at the time of his death, a citizen of this state.^ § 19. If any alien shall sell and dispose of any real estate, which he is entitled by law to hold and dispose of, he, his heirs and assigns, may take mortgages in his or their own name, as a collateral security for the purchase money due thereon, or any part thereof; and such mortgagee, his heirs, assigns or legal representatives, or any of them, may re-purchase any of the said premises, on any sale thereof made by virtue of any power contained in such mortgage, or by virtue of any judgment or decree of .any court of law or equity, rendered in order to enforce the payment of any part of such money, and may hold the same premises, in the like manner, and with the same authority, as the same were originally held by such mortgagor.* Note of Commissioners. The Commissioners of Statutory Revision have, with unusual fullness, commented on the changes made by this article of " The Real Property Law " in respect of aliens.' Aliens May Take by Purchase. By the common law aliens might take lands by purchase (which includes devise^") and hold them as against every one but the King.'^ The disabilities of aliens, being primarily due to the common law^^ adopted in this State, have been removed to some extent by legislation. Disabilities of Aliens Removed. The disabilities of certain resident aliens were removed at a very early period in New York by special acts of the Legislature. This legislation was of a two-fold char- acter: I. Quieting the titles of those who then held lands in the State of New York, deduced from aliens.^^ II. Enabling alien residents, or friends, to take and hold lands, and in certain cases to transmit title thereto.^* By such legislation aliens were em- ■^ Repealed, chap. S47, Laws of 1896. Independence may be determined froni 8 Repealed, chap. 547, Laws of 1896. certain English statutes. 13 Geo. II, 9 Vide infra. Appendix No. I, pre- chap. 7; 2 Geo. Ill, chap. 25; 13 Geo. liminary note, "Aliens." Ill, chap. 25; 11 & 12 Wm. Ill, chap. 1" Su^ra, p. 103, under § 2, The Real 6, and see index, "Aliens," Hist. Real Prop. Law. Prop, in New York. 11 Craig V. Leslie, 3 Wheat. 563 ; 2 1* The principal acts are, chap. 72, Kent Comm. 61. Laws of 1798, construed in chap. 25, 12 Supra, p. 102. Laws of 1819 ; chap. 49, Laws of 1802 ; 1* Chap. 42, Laws of 1789; 2 Green- chap. 109, Laws of 1804; chap. 25, leaf, 279 ; chap. 123, Laws of 1807 ; Laws of 1805 ; chap. 21, Laws of 1807 ; chap. 297, Laws of 1826; i R. S. 754, chap. 123, Laws of 1807; chap. 175, § 22; chap. IIS, Laws of 1845. The Laws of 1808 (the last five acts are in status of aliens in New York prior to 2 R. L. 541, 544) ; chap. 307, Laws of Aliens. 113 powered to take by devise or descent from such aliens as were then lawfully seised, but not otherwise. Having thus acquired title, aliens might continue to hold and transmit title to the lands so transmitted to them, until such lands came into the hands of citizens.*^ Such aHens might also mortgage their lands. ^^ Disabilities, how Removed. The Revised Statutes, consolidating an act of 1825,1^ empowered any ahen coming into the State to make and file a deposition, etc., of intended residence and naturalization,^* and thereupon to take and hold lands, and during six years to dispose of the same in any way, except by demise. ^^ This license to aliens was not retroactive so as to enable them to hold lands acquired before the filing of the declaration or deposition, as against the State.^" In 1845 ^ demise theretofore made by an alien to a citizen or an alien capable of holding real estate was made valid.^^ In the same year the Revised Statutes touching aliens' declarations or depositions of an intention to become citi- zens^ was so amended as to have a retroactive effect on property theretofore granted, devised or conveyed to such aliens.^* But these statutes constitute a mere authority to aliens. They are merely probationary, and the filing of such a deposition or declara- tion of intention does not constitute an alien a citizen of the United States,^* and the failure of the declarant to complete the naturalization within the time allotted is equivalent to an abandon- ment of the license.^^ 1825; chap. 171, Laws of 1830; chap. Prop. Law, and I R. S. 720, § 14, set 87, Laws of 1843 ; I R. S. 719, § 9 ; r /. out above in full. I R. S. 7S4, § 22, now § 294, The Real i^ Vide supra, i R. S. 720, §§ 16, 17, Prop. Law; and now see chap. 593, and 18, set out in the text. Cf. chap. Laws of 1897, p. 104, supra. 115, § 9, Laws of 1845; Dusenberry v. 15 Duke of Cumberland v. Qraves, 7 Dawson, 9 Hun, 511. N. Y. 305 ; Heney v. Brooklyn Be- ^o Heney v. Brooklyn Benevolent nevolent Soc, 39 id. 333 ; People v. Soc, 39 N. Y. 333 ; Goodrich v. Rus- Snyder, 41 id. 397 ; Howard v. Moot, sell, 42 id. 177 ; Jackson v. Beach, 64 id. 262; Watson v. Donelly, 28 i Johns. Cas. 399; i R. S. 720, § 17, Barb. 653 ; Parish v. Ward, Id. 328. supra. 18 Vide infra, under this section. 21 Chap. 115, § 9, Laws of 1845. 1'^ Chap. 307, Laws of 1827, p. 427; i ^ i 'S.. S. 720, §§ 15-18 (Vide supra, R. S. 720, §§ IS, 16, 17, and 18, supra; under this section). Wright V. Saddler, 20 N. Y. 320. 23 Qiap. 115, Laws of 1845; 18 Amended, chap. 272, Laws of amended, chap. 576, Laws of 1857. 1834, to any aliens coming into the ^ In re Moses, 83 Fed. Rep. 995. United States. Vide § 4, The Real ^ McCarty v. Deming, 6 Lans. 440. 8 114 Descent through Aliens. Patents to Aliens. A grant of the public lands to aliens by legisla- tive authority seems to operate as a waiver of the public right to a forfeiture for alienage, as against both the grantee and his alien heirs.^^ Title by Descent Through and of Aliens. At common law no descent was cast on an alien, nor had an alien inheritable blood.^'^ The Revised Statutes, consolidating prior acts of the Legislature,^^ regulated descents from aliens who should file declarations, or depositions of intended citizenship, in case declarants died within six years, leaving heirs inhabitants of the United States. Such heirs were empowered to take as if such alien had died in posses- sion of citizenship.^ In 1845 the Legislature made important amendments or alterations of the common law, inter alia, enabling aliens to inherit lands purchased by resident aliens dying seised.^" This act failed to remove the incapacity of aliens to inherit from citizens.^^ This was remedied by further legislation, enabling aliens to take by descent from citizens.^^ But, both under the act of 1845 and its amendments, if such aliens were males of full age, they were required to take steps toward naturalization before they could hold the lands as against the State.^* None of these acts enabled nonresident aliens to take lands acquired by aliens by descent; nor did they enable resident aliens to take as the repre- ss Jackson ex dem., etc. v. Etz, 5 wright v. Low, 132 id. 317; Callahan Cow. 314. V. O'Brien, 72 Hun, 216. ^'^ Leary v. Leary, 50 How. Pr. 122 ; ^^ Leary v. Leary, 50 How. Pr. 122 ; Goodrich v. Russell, 42 N. Y. 177, 181 ; Luhrs v. Eimer, 80 N. Y. 171 ; Kelly Geofroy v. Riggs, 133 U. S. 258, 265; v. Pratt, 41 Misc. Rep. 31; cf. i R. S. and see observation under § 2, The 753. § 16; § 291, The Real Prop. Law. Real Prop. Law. ^^chap. 261, Laws of 1874; chap. 38, ^ Chap. 261, Laws of 1826, p. 348 ; Laws of 1875 ; Wainwright v. Low, chap, s, Laws of 1827; cf. McCarty v. 132 N. Y. 313; Stamm v. Bostwick, Deming, 6 Lans. 440. 122 id. 48 ; Daly v. Beer, 10 N. Y. 29 I R. S. 720, § 18. If such alien Supp. 893 ; Kelly v. Pratt, 41 Misc. lived beyond six years, and did not Rep. 31. complete his adjudication of citizen- ^^Chap. 115, Laws of 1845, as ship, his heirs lost the benefit of the amended by chap. 261, Laws of 1874, act. McCarty v. Deming, 6 Lans. 440. and chap. 38, Laws of 1875 ; Goodrich so Chap. 115, Laws of 1845; Etten- v. Russell, 42 N. Y. 177; Dusenberry heimer v. Heflferman, 66 Barb. 374; v. Dawson, 9 Hun, 511; Maynard v. Goodrich v. Russell, 42 N. Y. 177; Maynard, 36 id. 227; Smith v. Reilly, Stamm v. Bostwick, 122 id. 48 ; Wain- 31 Misc. Rep. 701 ; affd., sub nom., Smith V. Smith, 70 App. Div. 286. Aliens. 115 sentatives of nonresident aliens.^* But in 1893 an act was passed, evidently designed to remedy even this state of things.^^ This last act the Commissioners of Statutory Revision have not caused to be re-enacted, and it is now repealed.^ Recently the important act of 1897 removes the disabilities of most Europeans.^' Capacity of citizens and denizens to inherit through alien ancestors is also discussed under article IX of this act.^* What Law Regulates Title by Descent. The extent of the common- law disabilities of aliens to inherit depends on the law in force at the time of the death of the person from whom they claim to inherit.^® Brothers and their Descendants. The common-law rule, that aliens had no inheritable blood, did not, at common law, impede descent between citizen sons of an alien father,*" or between their descend- ants. Such descent is immediate.*^ But a citizen nephew, whose father is an alien, could not inherit from a citizen uncle under this exception.*^ Otherwise, after the Revised Statutes, if the father were dead.** Mortgages to Aliens. Aliens seised of real estate, which by any law they were permitted to hold and dispose of, were empowered by the Revised Statutes to take back mortgages thereon and enforce the same, and, if necessary, they or their representatives might repurchase and hold the same.** This provision was not, 3*Branagh v. Smith, 46 Fed. Rep. Eimer, 80 id. 171; Renner v. Mullef, 517; Callahan v. O'Brien, 72 Hun, 44 N. Y. Super. Ct. 535; Hyatt v. 216; Stewart v. Russell, 91 App. Div. Pugsley, 33 Barb. 373, 375. 310. *i McGregor v. Comstock, 3 N. Y. 35 Chap. 207, Laws of 1893; cf. 408; Banks v. Walker, 3 Barb. Ch. § 294, The Real Prop. Law. 438; McLean v. Swanton, 13 N. Y. 36 See Appendix I, Revisers' Pre- 535, 542; Parish v. Ward, 28 Barb, lirainary Note to The Real Prop. Law, 328 ; Wheeler v. Clutterbuck, 52 N. Y. and schedule of laws hereby repealed, 67, 71 ; Luhrs v. Eimer, 80 id. 171, infra. 179. 3T Vide p. 104, supra. *2 The People v. Irvin, 21 Wend. 38 f 294, The Real Prop. Law. 128; Lessees of Levy v. McCartee, 6 3*Heney v. Brooklyn Benevolent Pet. 102; Jackson v. Green, 7 Wend. Society, 39 N. Y. 333, 337 ; Renner v. 333. MuUer, 44 N. Y. Super. Ct. 535; *3 Redpath v. Rich, 3 Sandf. 79; Stewart v. Russell, 91 App. Div. 310. Jackson v. Fitz Simmons, 10 Wend. 9; *''2 Black. Comm. 250; Jackson v. and see § 294, The Real Property Green, 7 Wend. 333; McGregor Law. V. Comstock, 3 N. Y. 408; McLean v. ** i R. S. 721, § 18. Swanton, 13 id. 535, 542; Luhrs v. 116 Devises to Aliens. however, new to the statute book.*^ Irrespective of this authority, an alien may take and hold a mortgage on lands, as it is now only collateral security.*^ Wives of Aliens Kntitled to Dower. The wives of any alien resi- dents of this State, seised of real estate, were by statute entitled to dower therein, whether they were aliens or citizens.*^ As the com- mon law took no notice of an alien,*® estates created by operation of law could not pass to an alien, and consequently an alien could not have either curtesy or dower.** The act of 1845 was not the first to change this rule.^" Since 1855, alien women who marry citizens of the United States are declared ipso facto to be citizehs,^^ and are, of course, entitled to dower on the same principle as other citizens. But this was not so formerly, for at common law a woman might be an alien and her husband a citizen.^^ Devises to Aliens Void. The New York Statute of Wills, as before stated, declared devises to aliens void.^^ This statute was, however, modified by the act of 1845,^'* so as to permit resident aliens to take ^2 R. S. S41. All now repealed by § 300, The Real Property Law (Schedule of Laws Repealed). *8 Ludlow V. Van Ness, 8 Bosw. 178; cf. Atty.-Gen. v. Sir George Sands, Tudor, Lead. Cas. Real Prop. 760, 774, and chap. 593, N. Y, Laws of 1897, supra, p. 104. ^"^ One of the first statutes passed in England on this subject was 8 Hen. V. ; Lewis Bowles's Case, Tudor, Lead. Cas. Real Prop. 73. In 1802, chapter 49, a similar act was passed in New York. But the general act was chap. 115, § 2, Laws of 1845; Burton v. Burton, i Keyes, 359; i Abb. Ct. App. Dec. 271; Goodrich v. Russell, 42 N. Y. 177, 182; cf. Currin V. Finn, 3 Den. 229; i R. S. 740, § 2. *8 Jackson v. Green, 7 Wend. 333; Jackson v. Jackson, 7 Johns. 214; Orser v. Hoag, 3 Hill, 79; McLean V. Swanton, 13 N. Y. 535; Luhrs v. Eimer, 80 id. 171; Leary v. Leary, 50 How. Pr. 122. *9 Jackson v. Lunn, 3 Johns. Cas. 109, 121; Jackson v. Fitz Simmons, 10 Wend. 9, 16; Mick v. Mick, Id. 379; Connolly v. Smith, 21 id. 59; Currin v. Finn, 3 Den. 229; Wright V. Sadler, 20 N. Y. 320; Story, Confl. Laws, § 448; Burton v. Burton, i Keyes, 359, 360. 50 Chap. 49, Laws of 1802; Sutliii v. Forgay, i Cow. 89; aflfd., 5 id. 713. But the act of 1802 was of limited ap- plication. I R. S. 740, § 2. BiU. S. R. S., § 1904; Kelly v. Owen, 7 Wall. 496; et vide supra, p. 99, under § 2, The Real Prop. Law. 62 Bacon Abr. tit. "Alien;" Currin v. Finn, 3 Den. 229; cf. Priest v. Gumming, 16 Wend. 617; revd., 20 id. 338; Wright v. Saddler, 20 N. Y. at p. 328. S3 2 R. S. 57, § 4 ; vide supra, p. 103, under § 2, The Real Prop. Law. 6« Chap. 115, Laws of 1845. Aliens. 117 by devise on complying with that act.""* At present no distinction is made in this respect between resident and nonresident ahens '* Alien Women may Take by Marriage Settlement. By the act of 1845^'^ an aHen woman bemg a resident was made capable of taking lands by marriage settlement^* or by devise,^* and of executing every power in respect to the realty devised to her.^" The act of 1845 is now hereby wholly repealed.®^ Citizen Women who Marry Aliens. Concerning the rights and pow- ers of citizen women who marry aliens and lose their original po- litical status, and the rights of the issue of such marriage, consult the next succeeding section of this act.®^ Trusts for Aliens. If lands be devised to citizens on active trusts for aliens, the trusts are not necessarily invalid, as the trustees have capacity to take and hold,*^ and where the land is directed to be sold and proceeds distributed among aliens this is a gift of money.^* Where money of aliens is converted into lands without the consent or knowledge of such aliens, the land is money in equity.** But where an alien for the purpose of evasion purchases land and takes a conveyance in the name of a third person, with- out any written declaration, a resulting trust will not arise in favor of the alien.®* A mortgage of lands to citizen trustees for the security of aliens is not now prohibited.*^ Where an alien has authority to hold lands for his own use, he may take and hold as trustee.** ^5 Hall V. Hall, 8i N. Y. 130; Mc- 319; cf. Beekman v. Bonsor, 23 id. Gillis V. McGillis, 134 N. Y. 532, 540; 298, 316; Ludlow v. Van Ness, 8 cf. Stewart v. Russell, 91 App. Div. Bosw. 178; Tudor, Lead. Cas. Real 310, 314. Prop, note, 774. ^^ Supra, p. hi; chap. 38, Laws of ** Meakings v. Cromwell, 5 N. Y. 187s; chap. 593, Laws of 1897; Smith 136. V. Reilly, 31 Misc. Rep. 701, 70 App. 65 Anstice v. Brown, 6 Paige, 448. Div. 286. 66 Leggett v. Dubois, 5 Paige, 114; 57 Chap. IIS, Laws of 1845. cf. Atty.-Gen. v. Sands, Hardres, B8§ 8, id. 488; Tudor, Lead. Cas. Real Prop. 69 § 7, id. 760; Jackson v. Leggett, 7 Wend. *" § 7, id.; cf. § 121, The Real Prop. 337; Anstice v. Brown, 6 Paige, 448. Law. *'' Ludlow v. Van Ness, 8 Bosw. *i § 300, The Real Prop. Law, and 178. schedule thereto attached. 68 Duke of Cumberland v. Graves, 62 § 6, The Real Prop. Law. 9 Barb. 595; 7 N. Y. 305; Howard v. 63 Marx V. McGIynn, 88 N. Y. 337, Moot, 64 id. 262. 376; Wainwright v. Low, 132 id. 313, 118 Treaty. Effect of this Section. At common law an alien who held lands, by purchase, might hold them as against all the world except the State, and they could be conveyed by him subject to being divested on the recording of the inquisition.*® Under this section of the Real Property Law the alien may defeat the State by taking the steps prescribed in section 4 of this act. Surrender or Release by the State. The disabilities of particular aliens are often relieved by special acts of the Legislature, either sur- rendering the rights of the State or by vesting such rights in par- ticular persons ; but such surrender cannot operate to defeat prior vested rights of citizens.™ Treaty. By treaty between the government of the United States and foreign powers, the disabilities of alien subjects are frequently removed in respect of real property.''* As the treaty power is lodged only in the Federal government, that government takes, by implication, an authority to suspend the action of such laws of any State of the Union as may conflict with a treaty.''* The treaty is ineffectual unless it become the supreme law of the land.^* The constitutional power of the United States to thus abrogate the law of a State is fully affirmed.''* 'When a treaty thus regulates the status of particular aliens to take and hold lands, the treaty is equivalent to a personal law exempting them from the operation of the regular and general law of the land. Effect of this Section. It will be observed that, under this sec- tion,''* an alien woman may have dower, contrary to the common law,''* and alien heirs have inheritcible blood contrary to the com- 8® Vide supra, pp. 103, 112, under '^2 pgr a general discussion of this I 2, The Real Prop. Law, and § 7, subject, see Prof. Bernheim's " His- The Real Prop. Law. tory of the Law of Aliens " (New TOLuhrs V. Eimer, 80 N. Y. 180; York, 1885), 148 et seq. Wainwright v. Low, 132 id. 313; Re- '^3 KuU v. KuU, 37 Hun, 476, 478. cor V. Blackburn, 71 Hun, 54; Jack- ''* Hauenstein v. Lynham, 100 U.S. son V. Lyon, 9 Cow. 664. 483; Geofroy v. Riggs, 133 id. 258; "Matter of Beck, 31 N. Y. St. Opin. U. S. Atty.-Gen., VHI, 411; Repr. 965; Wieland v. Renner, 3s Wheat. Internat. Law, 139; Halleck, How. Pr. 24s; BoUerman v. Blake, Internat. Law, 157; 4 Kent Comm. 94 N. Y. 624; Matter of Lobrasciano, 420; Whart. Am. Law, 261. 38 Misc. Rep. 41 S ; Geofroy v. Riggs, ■» § 5, The Real Prop. Law. 133 IJ. S. 258. ''^ Supra, p. 102. Treaty. 119 mon-law" rule, provided the husband and father file his prelim- inary papers or deposition and die within six years. Law of 1897. Chapter 593, Laws of 1897/* now enables aliens of a State or nation, conferring like privileges on citizens of the United States, to talte, acquire, hold and convey real property in this State in the same manner and with like effect as if such aliens were citizens.™ ''''Supra, p. 114. ''^ Supra, p. 104; Fay v. Taylor, 31 ''^ Supra, p. HI. Misc. Rep. 32; cf. Geofroy v. Riggs, 133 U. S. 258. 120 Effect of Intermarriage. § 6. Effect of woman's marriage with alien on rights of herself and her descendants. — Any woman born a citizen of the United States, who shall have married or shall marry an alien, and the foreign born children and descendants of any such woman, shall, notwithstanding her or their resi- dence or birth in a foreign country, be entitled to take, hold, convey and devise real property situated within this state in like manner, and with hke efifect, as if such woman and such foreign born children and descendants were citi- zens of the United States; and the title to any such real property shall not be impaired or affected by reason of such marriage, or residence, or foreign birth; provided that the title to such real property shall have been or shall be derived from or through a citizen of the United States. Formerly chapter 756, Laws of 1897, which became a law May 22, 1897, and amended section 6 of The Real Property Law as originally enacted. Note on Section 6, Supra. Originally section 6 of The Real Prop- erty Law was as follows ■.^° § 6. Effect of Marriage with Alien. A woman who, being a citizen ol the United States, marries an alien not entitled to hold real property in this state, may, notwithstanding such marriage, take by grant, will or descent, and hold, convey and devise real property within this state; and the de- scendants of such a woman who dies intestate, inherit her real property within this state, and any real property which she would have been entitled to take, by descent, if living; and such descendants may take real property by grant or devise from their mother, or from any citizen to whom she would be an heir, may hold real property acquired under this section, and may convey and devise it to any person capable of holding the same. The apposite acts repealed by The Real Property Law^l are as follows ; Laws of 1872, chapter 120: "An act to authorize the descent of real estate to female citizens of the United States, and their descendants, notwith- standing their marriage with aliens.'' Section i. Real estate in this State now belonging to, or hereafter coming or descending to, any woman born in the United States, or who has been otherwise a citizen thereof, shall, upon her death, notwithstanding her mar- riage with an alien and residence in a foreign country, descend to her law- ful children of such marriage, if any, and their descendants, in like manner, and with like effect, as if such children or their descendants were native born or naturalized citizens of the United States. Nor shall the title to any real estate now owned by, or which shall descend, be devised or otherwise conveyed to such woman, or to her lawful children, or to their descendants, 80 Chap. S47, Laws of 1896. 8^ Chap. 547, Laws of 1896. Marriage with Aliens. 121 be impaired or affected by reason of her marriage with an alien, or the alienage of such children or their descendants. (2) This act shall take effect immediately.82 Laws of 1889, chapter 42: "An act to enable the foreign born children and descendants of any woman born in the United States, and notwithstand- ing her marriage with an alien and residence in a foreign country, to take, etc., real estate," etc. Section i. That the foreign born children and descendants of any woman born in the United States, and notwithstanding her marriage with an alien and her residence in a foreign country, shall be entitled to take, hold, have, possess, enjoy, convey and devise real estate situated in this State, in the same manner, and to the same extent, and with the same effect, as if such foreign born children and descendants were citizens of the United States; nor shall the title to any such real estate which has descended or which shall descend, or which has been or shall be devised or conveyed, to such woman or to such foreign born children or descendants, be impaired or affected by reason of her marriage with an alien, or the alienage of such children or their descendants ; provided that the title to such real estate shall be or shall have been derived from or through such woman, or from or through some ancestor of such woman, which ancestor shall be or shall have been a citizen of the United States. S 2. This act shall take effect immediately.** Observation on Section 6, Supra. The section as originally adopted disturbed many families.** The amendment restores the foregoing acts of 1872 and 1889. Status of Married Women. By the modern law of nations (often denied in this country),*" the political status and domicile of a woman follow that of her husband,*" and by marriage and non- residence a citizen woman may lose her original domicile and even her original citizenship and be presumed to adopt those of her husband.*'^ The statute of her native State often removes the disa- 82 Repealed, chap. 547, Laws of Sim v. United States, 116 Fed. Rep. 1896. 920, 925; Nichols V. Nichols, 92 Fed. ** Repealed, chap. 547, Laws of Rep. i ; Ruckgaber v. Moore, 104 id. 1896. 947; Geofroy v. Riggs, 133 U. S. 258. 8* Note, Appendix No. I, to § 6, Cf. Wright v. Saddler, 20 N. Y. at The Real Prop. Law. p. 326; Van Dyne, " Citizenship of 80 Beck V. McGillis, 9 Barb. 35; the United States," pp. 127-142. Shanks v. Dupont, 3 Pet. 242. Cf. ^^This principle seems assumed in Bacon Abr. tit. "Alien;" Comitis /. Wadsworth v. Wadsworth, 12 N. Y. Parkerson, 56 Fed. Rep. 556. 376. And see Story, Confl. Laws, ** Story, Confl. Laws, § 181; Tsoi 5 49; Joint Resolution of Congress, 122 Alien Descendants. bilities consequent upon her marriage, so as to enable her to con- tinue to take and hold real property and transmit title thereto.* Similar rights and powers are often extended to her alien descendants.** M^y i8, 1898, re Mrs. Sartoris; Ruck- ^^ Supra, chap. 42, Laws of 1889; gaber v. Moore, 104 Fed. Rep. 947. chap. 120, Laws of 1872; Van Court- is See Stat. 8 Hen. V, noticed in land v. Nevert, 11 N. Y. Supp. 148, Lewis Bowles's Case; Tudor, Lead. 152; McGillis v. McGillis, 154 N. Y. Cas. Real Prop. 73. 532, 542. Title through Alien. " 123 § 7. Title through alien — The right, title or interest in or to real property in this state of any person entitled to hold the same cannot be questioned or impeached by reason of the alienage of any person through whom such title may have been derived. Nothing in this section affects or impairs the right of any heir, devisee, mortgagee, or creditor by judgment or otherwise. As this section of The Real Property Law is the sequent of many similar enactments only now repealed,** it is deemed best to set them out in full: Laws of 1802, chapter 49, section 3 : § 3. And be it further enacted, That the title of any citizen or citizens of this state, to any land or lands within this state, heretofore conveyed to such citizen or citizens, and now in the actual possession of such citizen or citi- zens, shall not be questioned or impeached, by reason of the Alienism of any person or persons from or through whom such title may have been derived: Provided, That nothing in the said last clause contained, shall extend to the Military or Bounty Lands so called, in the counties of Onondaga and Cayuga.*! Laws of 1807, chapter 123, section 2 : § 2. And be it further enacted. That the title of any citizen or citizens of this state to any land or lands within this state, heretofore conveyed to such citizen or citizens and now in the actual possession of such citizen, shall not be questioned or impeached by reason of the alienism of any person or per- sons from or through whom such title may have been derived.*^ 93 I Revised Statutes, 719, section 9: § 9. No title or claim of any citizen of this state, who was in the actual possession of lands on the twenty-first day of April, one thousand eight hundred and twenty-five, or at any time before, shall be defeated or preju- diced on account of the alienism of any person through or from whom bis title or claim to such lands may have been derived.** Chapter 115, Laws of 1845, section 9: § 9. Every grant, devise, demise, lease or mortgage of any lands within this state, heretofore made and executed in due form of law by an alien to any citizen of this state, or to any resident alien capable of taking and hold- ing any real estate, or any beneficial interest therein within this state, or which may hereafter be made and executed by any resident alien capable of taking and holding real estate within this state, to any citizen of this state, *" See note of Commissioners of ** These laws were not revised in Statutory Revision to § 7 of The Real the Revised Statutes, nor were thev Prop. Law, infra, Appendix I. repealed. See i R. S. 341 et seq., ist *i Repealed, chap. 547, Laws of edition. 1896. 9* Repealed,' chap. 547, Laws of 92 Repealed, chap. 547, Laws of 1896. i8g6. 124 Title through Alien. or to any resident alien capable of taking and holding real estate, or any beneficial interest therein; and all rents reserved or hereafter reserved on any such lease or demise, and all lawful covenants and conditions in any such lease or demise, are hereby confirmed, and shall be deemed and taken to be as valid and effectual, as if made by or between citizens of this state.^^ Laws of i8s7, chapter 576, section i : Section i. The several provisions of the act entitled "An act to enable resident aliens to hold and convey real estate, and for other purposes," passed thirtieth of April, eighteen hundred and forty-five, are hereby ex- tended and applied to any such grant, demise, devise, lease or mortgage which are enumerated in said act, and which have been heretofore made, and shall be as effectual to pass the title thereto as though the persons by, from, or through whom the title shall have so passed, had been citizens of the United States, and as though the several provisions of said act had been as they hereby are re-enacted. The deposition or affirmation required to be made in the first section of the act hereby extended, shall be made and filed in t..e office of the secretary of state, within two years from the time when this act shall take effect, and if any person who, according to the provisions of the act hereby re-enacted and extended, is required to make and file in the office of the secretary of state the deposition or affirmation herein men- tioned, shall neglect or omit to make and file the same within the time herein limited, he or si.e so neglecting or omitting to make and file such deposition or affirmation, shall not be entitled to the benefit of this act.^^ Laws of 1868, chapter 513, section i : Section i. The title of any citizen or citizens of this state, to any land or lands within this state, and now in the actual possession of such citizen or citizens, shall not be questioned or impeached by reason of the alienism of any person or persons, from or through whom such title may have been derived : Provided, however, that nothing in this act shall affect the rights of the state in any case in which proceedings for escheat have been in'stituted.^'^ Laws of 1872, chapter 141, sections i, 2 : Section i. The title of any citizen or citizens of this state to any lands within this state, shall not be questioned or impeached by reason of the alienage of any person or persons, from or through whom such title may have been derived. Provided, however, that nothing in this act shall aflfect the rights of the state in any case in which proceedings for escheat have been instituted. § 2. Nothing in this act shall affect or impair the right of any heir, devisee, mortgagee or creditor by judgment or otherwise.®* »6 Repealed, chap. 547, Laws of ^^ Repealed, chap. 547, Laws of 1896. 1896. 99 Repealed, chap. S47. Laws of »* Repealed, chap. 547, Laws of 1896. 1896. ( Title through Alien. ' 125 Laws of 1872, chapter ■ 358, section i : Section i. The title of any citizen or citizens of this state to any land or lands within this state, which may have heretofore been purchased by any such citizen or citizens from any alien or aliens, and for which a convey- ance has been heretofore taken by any such citizen or citizens from any alien or aliens, shall not, in any manner, be questioned or impeached by reason or on account of the alienage of the person or persons from whom such conveyance shall have been taken, or by reason of any devise of any such land or lands to any such person or persons, in any last will and testament being inoperative or void on account of the alienage of such person or per- sons : but all devises of land or lands heretofore made by any last will and testament to any alien or aliens from whom a conveyance of such land or lands so devised shall heretofore have been taken by any citizen or citizens of this state, are hereby declared to be valid and effectual, so far that the title of such citizen or citizens to such land or lands, shall not be affected by any invalidity of any such devise: provided, however, that nothing in this act contained shall affect the rights of this state in any case in which proceedings for escheat have been already instituted prior to the first day of January, one thousand eight hundred and seventy-two.^* Laws of 187s, chapter 336, section i ; Section i. The title of any citizen or citizens of this State to any lands within this State, shall not be questioned or impeached by reason of the alienage of any person or persons, from or through whom such title may have been derived. Provided, however, that nothing in this act shall affect the rights of this State, in any case in which proceedings for escheat have been instituted. § 2. Nothing in this act shall affect or impair the rights of any heir, devisee, mortgagee, or creditor, by judgment or otherwise. Laws of 1877, chapter iii, section i: Section i. The right, title or interest of any citizen or citizens of this State in or to any lands within this State now held or hereafter acquired shall not be questioned or impeached by the reason of the alienage of any person or persons from or through whom such title may have been derived ; provided, however, that nothing in this act shall affect the rights of the State in any case in which proceedings for escheat have been instituted. § 2. Nothing in this act shall affect or impair the right of any heir, devisee, mortgagee or creditor by judgment or otherwise.^ 2 History of this Enactment. SuBsequently to the statute 12 Charles II, chapter 24, when an alien died intestate seised of lands, held chap. 207, Laws of 1893, now also re- pealed. See Report of Commission- ers of Statutory Revision, and infra, art. X, The Real Prop. Law. 99 Repealed, chap. 547, Laws of 8g6. 1 Repealed, chap. S47, Laws of 896. 2 This act was followed by another. 126 Title through Alien. by the socage tenure, as he had no inheritable blood,* and the common law took no notice of alien heirs,* the lands escheated and vested in the Crown, as it is said, without any necessity of inquest of office.^ The State of New York succeeded to all the rights of the Crown in respect of escheats of lands, and to all its seignioral rights in respect of the old socage tenure, which was universal in New York before the War of Independence.® When the socage tenure was abolished in New York, and lands were made allodial, the prior law of escheats propter defectum sanguinis was preserved, and escheats declared by statute to be in the State.'' This provision is now transferred to the Constitution.* In this way escheats are preserved to the State, notwithstanding the abolition of tenures. It was never decided, before Independ- ence, whether the Crown or the lord of the manor had escheats, within the manors of New York — an interesting question.^ But be this as it may, the State's original right to escheats was origi- nally wholly due to its succession to the Crown's legal and seignioral rights over the lands held by the socage tenure.^" This right the State may waive in any way it see fit, and the series of acts above set forth*^ are evident of such waiver, and serve to abrogate several disabilities of aliens whereby succession to estates in lands from or through aliens, was embarrassed. Effect of this Section. The enactment now re-embodied in this sec- tion of The Real Property Law relieves those who take title from alien purchasers of a subsequent liability to be divested of such title by the State in an action of ejectment, in the nature of an ^ Supra, p. 114. 8 Art. i, § 10, Const, of 1894; supra, * Supra, p. us; Luhrs v. Eimer, 80 p. 78. N. Y. 171, 179. 9 Escheats were, at common law, 5 Jackson ex dem., etc. v. Lunn, 3 not necessarily in the Crown, but in Johns. Cas. 109, 120; Jackson ex the chief lord of the fee. Cf. Challis, dem., etc. v. Adams, 7 Wend. 367; 29. It is here said that it is often Goodrich v. Russell, 42 N. Y. 177; difficult to prove the rights of other Larreau v. Davignon, 5 Abb. Pr. lords to escheats. {N. S.) 367, 370; Challis, 29, 31; 2 i" This was perfectly understood by Black. Comm. 72. former generations of lawyers in eChap. 25, Laws of 1779; i J. & V. New York. 44, S 14 ; I Black. Comm. 302 ; 2 id. n Cf. § 294, The Real Prop. Law, 89 ; supra, pp. 43, 53. infra. Ti R. S. 718, § i; Johnston v. Spicer, 107 N. Y. 185. / Title through Alien. 127 inquest of office.'^ Before such enactment the prerogative right of escheat was not barred by an ahenation to a citizen by an alien. His conveyance might bar himself, but not the sovereign upon office found.^* The complement of this section is to be found in another article of this act, regulating descents through alien ancestors,^* and in the recent act of 1897.^^ ** Ejectment became the remedy of ^^ 2 Kent Comm. 61. the State by i R. S. 282, § i ; 2 id. " § 294, The Real Prop. Law. 586, § S3. The Code of Civil Proce- ^^ Chap. 593- Laws of 1897, supra, dure now regulates ejectment. p. 104. 128 Liabilities of Aliens. § 8. Liabilities of alien holders of real property. — Every alien holding real property in this state is subject to duties^ assessments, taxes and burdens as if he were a citizen of the state. Formerly i Revised Statutes, 721, section 20, and chapter 115, Laws of 184s, section 12: § 20.16 Every alien who shall hold any real estate by virtue of any of the foregoing provisions, shall be subject to duties, assessments, taxes and bur- thens, as if he were a citizen of this State; but shall be incapable of voting at any election, or of being elected or appointed to any office, or of serving on any jury.l'^ Laws of 184s, chapter 115, section 12: § 12. Every alien who shall hold any real estate by virtue of any of the foregoing provisions, shall be subject to duties, assessments, taxes and burdens, as if he were a citizen of the United States ; but shall be incapable of voting at any election, or of being elected or appointed to any office, or of serving on any jury. Changes in this Section. Section 8 of The Real Property Law is composed of the foregoing enactments, with the following change : The words " but shall not be elected to any office or serve on any jury," are omitted as unnecessary. The Code of Civil Pro- cedure (§ 1027) prescribes the qualifications of trial jurors, and the Revised Statutes (Ft. IV, chap. 2, § 3, p. 720) prescribe the qualifications of persons who may be placed on the grand jury lists. Public Officers' Law (§ 3) prescribes the qualifications for holding office.^* Aliens' Disabilities. Aliens cannot serve as jurors.^® Nor is an alien entitled longer to be tried by a jury partly composed of aliens,^" nor to a jury medietatis linguae. The disabilities of friendly aliens by the old common law, summarized by Blackstone,^^ have been materially ameliorated in this country by treaties^* adopted long after Blackstone's day. The recent act of 1897,^ removing the disabilities of so many friendly aliens, makes the above sec- tion more extensive than ever in application. 18 Laws of 1825, p. 427, § 4. Proc; Bennett v. Matthews, 40 How. 1'^ Repealed, chap. 547, Laws of Pr. 428, 434. i8g6. 20 § 1 190, Code Civ. Proc. 18 Note of Commissioners of Statu- ^1 i Black. Comm. 371. tory Revision to § 8, The Real Prop. ^^Vide supra, p. 118. Law. ^ Chap. 593, Laws of 1897, supra, 19 1 R. S. 721; § 1027, Code Civ. p. 104. Indians. 129 :§ 9. Heirs of patriotic Indian. — The heirs of an Indian to whom real property was granted for military services rendered during the war of the revolution may take and hold such real property by descent as if they were citizens of the state at the time of the death of their ancestors. A con- veyance of such real property to a citizen of this state, executed by such Indian or his heirs after March seventh, eighteen hundred and nine, is valid, if executed with the approval of the surveyor-general or state engineer and surveyor, indorsed thereupon. Formerly i Revised Statutes, 720, section 13: § 13. The heirs of every Indian to whom land has been granted for mih- tary services rendered during the war of the Revolution, shall be and are capable of taking and holding any such lands by descent, in the same man- ner as if such heirs were citizens of this state, at the death of their ances- tors; and every conveyance executed by such patentee, or his heirs, after the seventh day of March, one thousand eight hundred and nine, to any citizen of this state, for any such land, shall be valid, if executed with the appro- bation of the surveyor-general of this state, to be expressed by an indorse- ment made on such conveyance and signed by him.^* Account of this Section. This section of the Revised Statutes is an enabling act; it purports to have been taken from chapter 92 of the Laws of 181 3, which consolidated a great number of prior acts on the same subject.^ Similar provisions were contained in the Revised Laws of 1813.^^ Before the acts of 1809 and 1810, in respect to the conveyance of lands by native American Indians, an Indian owning lands, though by title from the government, had no capacity to convey.^^ Indians occupy a peculiar status;^^ they are not citizens^® and they have limited rights. By act of Congress, no sale, grant or conveyance of lands by Indians is valid except by the consent of the United States.*" The State Constitution of New York pro- 2* Repealed, chap. 547, Laws of S3i I Jackson v. Brown, 15 Johns. 264; 1896. Jackson v. Hill, S Wend. 532. ^ See 2 R. L. 153, and the head ^ See Fowler, Hist. Real Prop, in and side notes to the chapter of that N. Y., pp. 3, 199, and cases cited, edition of New York Laws. 29 Elk v. Wilkins, 112 U. S. 93. 262 R. L. 17s, § SS; Gillett v. Stan- 30 2 U. S. Stats, at Large, 143; 4 id. ley, I Hill, 121. 730; Shongo v. Miller, 45 App. Div. 2T Murray v. Wooden, 17 Wend. 339; Jones v. Meacham, 175 U. S. i. 9 130 Indians. vides that no purchase or contract for the sale of lands of or with the Indians shall be valid unless made with legislative author- ity.^^ Indians cannot bring ejectment for tribal lands.^^ But they may be sued for torts.^^ Sections lo to 19 Inclusive. The reader will take notice that at pres- ent there are no sections of The Real Property Law between sec- tions 9 and 20.^* The omission was designed to provide for V amendments to The Real Property Law. Cf. Seneca Nation v. Chrystie, 126 ^^jghnson v. Long Island R. R. N. Y. 122, 137, 139. Co., 162 N. Y. 462. *i Art. I, § 15. Penal Code, f 384a ; 33 Bates v. Printup, 31 Misc. Rep. and see The Indian Law, chap. 5, 17. General Laws. 3* See the next article of this act. The Real Property Law. 131 ARTICLE 11.^ Creation and Division of Estates. Section 20. Enumeration of estates. 21. Estate in fee simple and fee simple absolute. 22. Estates tail abolished ; remainders thereon. 23. Freeholds ; chattels real ; chattel interests. 24. When estate for life of third person is freehold; when chattel real. 25. Estates in possession and expectancy. 26. Enumeration of estates in expectancy. 27. Definition of future estates. 28. Definition of remainder. 29. Definition of reversion. 30. When future estates are vested; when contingent. 1 The original Revised Statutes in the article entitled, " Of the Creation and Division of Estates " (formerly art. I, tit. 2, chap, i, part 2, R. S.), was in reality concerned with the rules of law relating to the limitations of ex- ecutory legal estates, or those legal estates to commence in possession at a future day. [i R. S. 723, § 10, now § 27, infra, and i R. S. 726, § 43, now § SS. The Real Prop. Law.] Estates in possession or executed estates are not treated of in that article further than that the quantum of such estates is de- fined and they are classified. Hawley V. James, 16 Wend. 61, 128. When a person seised of a fee simple transfers his entire estate to another it is very obvious that that other succeeds to the same estate which his grantor had in respect of the land conveyed. " Non debeo melioris conditionis esse quant auctor meus a quo jus in me transit." D. I, 17, lyz, I. Whether such a trans- fer as this instanced may be regarded as the creation of an estate within the meaning of this article of the Re- vised Statutes, is doubtful from some points of view. The transaction is in reality a succession to an existing es- tate. But as an absolute conveyance not only extinguishes the rights of the grantor, but originates the rights of the grantee (Holland, Juris. 134), it is not perhaps altogether inconvenient to treat of such transfers in a statu- tory article relating to the creation of estates. But executory derivative es- tates, or those executory estates de- rived out of a fee and less in quantum than a fee, may accurately be said to be created by a grantor or devisor, and are properly treated of in this article. Nevertheless this article is after all concerned with the rules relating to the limitation of executory or future estates, and it may be so described in brief. In reference to all future es- tates in land, or estates in expectancy, this article of the statute furnishes the entire law. It is final and the courts must look exclusively to it when called upon to expound the law. Hawley v. James, 16 Wend. 61, 128. As regards the quantity and the quality of estates in possession this article has in reality very little to do; they are left to the common law. Infra, § SS, The Real Prop. Law. L32 Enumeration of Estates. Section 31. Power of appointment not to prevent vesting. 32. Suspension of power of alienation. 33. Limitation of successive estates for life. 34. Remainders on estates for life of third person. 35. When remainder to take effect if estate be for lives of more than two persons. 36. Contingent remainder on term of years. 37. Estate for life as remainder on term of years. 38. Meaning of heirs and issue in certain remainders. 39. Limitations of chattels real. 40. Creation of future and contingent estates. 41. Future estates in the alternative. 42. Future estates valid though contingency improbable. 43. Conditional limitations. 44. When heirs of life tenants take as purchasers. 45. When remainder not limited on contingency defeating prece- dent estate takes effect. 46. Posthumous children. 47. When expectant estates are defeated. 48. Effect on valid remainders of determination of precedent estate before contingency. 49. Qualities of expectant estates. 50. Disposition of rents and profits. 51. Accumulations. 52. Anticipation of directed accumulation. 53. Undisposed of profits. 54. When expectant estates are deemed created. 55. Estates in severalty, joint tenancy and in common. 56. When estate in common ; when in joint tenancy. 57. Sale of real property held by tenant for life with contingent re- mainder or remainders over to persons whose identity is unknown. 58. Application, how made. 59. Sale, how conducted. 60. Conveyances upon sale. 61. Disposition of proceeds of sale. § 20. Enumeration of estates.— Estates in real property are divided into estates of inheritance, estates for life, estates for years, estates at will, and by sufferance. Formerly i Revised Statutes, 722, section i : § I. Estates in lands are divided into estates of inheritance, estates for life, estates for years, and estates at will and by sufferance.2 Meaning of " Estate." This entire article of the statute is concerned with " legal estates," or those estates once cognizable in the courts 2 Repealed, chap. 547, Laws of 1896. Estates in New York. 133 of common law. An estate in lands had, before the introduction of English law in New York, come to have a very well-settled technical meaning, and, as Blackstone's definitions and classification were all- powerful with the revisers of the statutes of the State of New York in 1827-30, it is sufficient to give his definition : "An estate in lands, | tenements and hereditaments, signifies such interest as the tenant 1 hath therein." ^ It will be remembered that in Blackstone's day all estates in England were tenements.* The Crown was the sole allodial owner, and in legal theory every subordinate proprietor was a tenant. The estate, or status of the tenant, in respect of his land, was regulated primarily by the common law of England. The trans- mission and devolution of such estates were subsequently subjected to the influence of statute law. It is quite unnecessary here to trace back of Blackstone's day the origin of the term " estate," and it will be sufficient to point out that in the time of Bracton it had not yet acquired a settled meaning. At a later period the " Year Books," however, show that " estate " had acquired a well-settled technical significance, and until the great statute 12 Charles II, chapter 24, taking away the burdens of feudal tenures, the term " estate " could not have varied the significance so acquired. An estate for life was "status ad terminum vit<2" and an estate in fee "status in feodo simplici," of the earlier law.^ In the year 1664, when the Crown of England came into possession of the lands of New York, Black- stone's subsequent definition of the interest which a subject could hold in lands in England proved descriptive of the estates actually granted by the Crown to the various settlers in the province of New York. Every landholder was a tenant, and his interest and rights over the land granted to him constituted his " estate " therein. The manner in which estates held by the socage tenure became allodial in New York is shown in the introductory chapter of this book.® Estates in New York. It'is, perhaps, not accurate to term any origi- nal estate in New York " a common-law estate." Strictly, a common- law estate is confined to England, being of very ancient origin, and relatively all estates in New York are estates de novo. But, as by a process of extension the English law of land was made applicable to the lands of New York after 1664, the original estates in New * 2 Comm. 103. 5 yme ^ Pollock & Maitland, Hist. * The original settlements of the Eng. Law, chap. IV, § i. land were very ancient. Supra, p. 6. * Supra, pp. 46, 80. 134 Estates in Allodial Lands. York were created by the Crown according to that law, and thus the original estates in New York were limited by the Crown on precisely the same terms and subject to the same rules then appli- cable to the ancient common-law estates. All the original estates in New York were fee simples of the quantity and quality known in the seventeenth and eighteenth centuries in England. The origi- nal New York estates never were feuds, and were created only after the abolition of the feudal system by the statute 12 Charles II, chapter 24. They were such estates as the common law then per- mitted in lands. Estates in Allodial Lands. Prior to the act making lands allodial in New York, a tenant of a freehold was not seised of the lands, but of an estate therein, and it was, to say the least, formerly inartificial to plead a seisin of the lands themselves.'' The " act concerning tenures"® makes the tenures of certain lands allodial, but not the lands ; whereas, the Revised Statutes more correctly made the lands themselves allodial,® and since then it would seem not inartificial to plead " seisin of the lands,'' although now seisin can mean nothing more than ownership of an estate of freehold,-"* its feudal significance having passed away with the abolition of tenures.-'-'^ The sections of the Revised Statutes making lands allodial and declaring the relation of the State to lands within its jurisdiction,^^ perpetuated a condition of things practically existent since the birth of the State. If we have reference to the language of these sections, we perceive that the proprietor of allodial lands has still only an estate in them, and that the abolition of such tenures as existed here after the War of Independence is largely academic and intended only to preserve the general scheme of the revision.'^ Indeed, Chancellor Kent states that there is no distinction between an estate held by the re- formed socage tenure and an estate in the lands made allodial by '' Van Rensselaer v. Poucher, 5 Den. " Jackson v. Demont, 9 Johns. 55, 35, 41, 44. 58; I R. S. 718, § 4. 82 J. & V. 67; I K. & R. 64; I R. L. 12 I R s. 718, §§ I, 3; cf. Const, of 70- 1846, art. I, § 11; Const, of 1894, art. 9 I R. S. 718, § 3 ; Const, of 1894, I. S 10. art. I, § 12. 1* People v. Trinity Church, 22 N. 10 Matter of Dodge, 105 N. Y. 585, Y. 44; cf. People v. Van Rensselaer, 9 591 ; Bedell v. Shaw, 59 N. Y. at p. id. 318, 319 ; Powers v. Bergen, 6 id. 49; cf. I Washburn, Real Prop., 3S8, 366 ; Taylor v. Porter, 4 Hill, 140. pp. 34, 35; 2 id. 483, 48s; Goodeve, Real Prop. 21, 153. Estates before the Revised Statutes. 135 statute in New York.^* If we consider escheats and the law of merger, we shall be convinced that an estate in allodial lands is not materially changed from an estate in socage lands after the statute of 12 Charles II, chapter 24, taking away the feudal burdens from tenure. Although the term " estate " is frequently used as the equivalent of " property," ^* even since the Revised Statutes, it really denotes the legal relation which a citizen may have in respect of a particular piece of land. It connotes the rights, duties, and obligations of the owner of the land. An " estate " is, in fact, uni- versitas juris, or the totality of a man's rights, obligations, and pow- ers in respect of a certain piece of land. Quantity and Quality of Estates. For convenience, estates are some- times classified by quantity and quality. The quantity of an estate then relates to its continuance in point of time. The quality of an estate denotes its nature, incidents, and collateral qualifications, such as a condition, a collateral limitation, a defeasance, or a joint ten- ancy.^* Estates Before the Revised Statutes. Prior to the Revised Statutes estates in the lands of New York, reduced to private dominion, were in legal contemplation of two classes : ( i ) Those held by the free and common socage tenure of the People of the State, who in their political capacity had been substituted for the Crown in all its rela- tions to the old socage tenure.^^ (2) Those derived from the State under the great seal or from the Commissioners of Forfeitures under the Acts of Confiscation and Sale.^* The second class were first de- clared to be allodial by the "Act Concerning Tenures " passed in 1787.^^ These acts had been either re-enacted in subsequent re- visions,^ or else were in force until the Revised Statutes went into effect. Prior to the Revised Statutes there was, however, no sub- stantial difference between those estates in lands, held of the State by the socage tenure, and the estates in lands declared allodial.^^ 1*4 Kent Comm. 2, 3. dell v. People, 8 Wend.. 182, 188; 15 Wharton Prin. Cony. 8. Const., art. i, § 10. 16 I Prest. Est. 7, 21; i Wharton ^8 j j. & y. 39, 159; i Greenl. 359. Conv. 92; Cruise Dig., tit. i, §§ 11, i^aj. &V. 67. 14 ; Crabb, Real Prop., § 2. 20 See i Greenl. 26, 359 ; index of 3 1^ Journal of the Provincial Conven- Webster Laws, at p. 593 ; i K. & R. tion, I, SS4; chap. 25, Laws of 1779; 64; i R. L. of 1813, p. 70. I J. & V. 44, § 14; I Greenl. 26, § 14; 21 4 Kent Comm. 2, 3; et supra, Cornell v. Lamb, 2 Cow. 652; Wen- p. 81. 136 Estates under the Revised Statutes. The courts had practically given the rigjitjo^distrain for rent to the proprietors of the allodial lands without the necessity of either ten- ure or fealty ; it was held sufficient in all cases if the landlord had the reversion.^ The original estates in New York created by the Crown suffered then no material change by the acts making lands allodial. Consequently, when the statutory provisions were carried into the Constitution of 1846 and that now in force, ^ existing estates were not abridged in any essential particular.^ Original Estates in New York. We have seen that the precise nature of an original estate in lands in the State of New York had, prior to the Revised Statutes, distinct reference not only to the terms of the original grant,^^ but also to the fundamental law. By the Con- stitution of the State the former law of the province had been con- tinued subject to such alterations as the Legislature might make therein.^^ This legislative power to change the law was ultimately subjected by the Federal Constitution to a great limitation, prohibit- ing any impairment of the grant or charter creating the original estates in fee. The constitutional protection of the original estates in lands in New York and the adoption of the former law of the province, perpetuated both the original estates and the derivative estates, as well as the laws regulating them. Estates under the Revised Statutes. Thus, the revisers of 1829-30 found estates in lands legally existing, and, as the Legislature had no power to impair an existing estate in fee, it could only regulate its future transmission and devolution, and estates derived out of the original estates. The Revised Statutes, therefore, simply described existing estates, and divided them into " estates of inheritance, es- tates for life, estates for years, and estates at will and by suffer- ance.^'' This declaration refers to the quantum or quantity of such estates. The division by quantity of estates in lands is ancient, but not primitive.^ It is substantially as old as Littleton as a quanta- tive division, and, therefore, obviously older in practice. The sec- tions of the Revised Statutes, touching the quantity of interest one 22 Cornell v. Lamb, 2 Cow. 652. 2e Const, of 1777, § 35 ; Const, of 23 Art. I, § 12. 1821-2, art. 7, § 13. 2* The allodial statutes always saved ^'^ Supra, § 20; i R. S. 722, § i. rents and socage services. Cf. Const. 28 At common law there were only 1894, art. I, § II. two estates in respect of quantity, of 25 Const, of 1777, § 36; Const, of inheritance, and for life. Challis. 1821-2, art. 7, § 14. chap. 8. Estates for Life. 137 might have in these estates, introduced no new principle in the law, in so far as the quantum or the devolution of these estates is con- cerned. Estates for years were declared to be still chattels real, and were not classed as real estate in the chapter of the Revised Statutes relating to title by descent; they go to the personal representatives as assets for distribution.^^ Estates of Inheritance. Estates of inheritance will be considered under the next section of this act.®" " Hereditaments " are included within " estates of inheritance " under this section, and, therefore, a perpetual easement to carry water across the land of another is an estate of inheritance within this section.*^ So, although at com- mon law " terms of years " were not strictly estates, they became such in the reign of Henry VIII, when the termor was protected.^^ This^section includes terms of years with estates in land, in conform- ity with the law as it stood prior to Independence, although terms of years remain chattels real.^ Estates for Life. Estates for life were estates originally recognized and protected by the common law,^* and are still expressly retained by the present statute.^ An estate for life is one of the two com- mon-law, or primitive legal, estates.^® From estates for life are de- rived estates pur autre vie.^'' When no particular life is specified a grantee holds for his own life.^* A life estate may be reserved by a grantor in a Heed, or take effect by virtue of the delivery of a deed in escrow.^* An estate for life may be created by act of a grantor, through any instrument operating as a conveyance; or it may be created by operation of law on the survival of husbands or wives. If a husband survive a wife, having had issue by her, born alive, he takes an estate for his own life in her real property, still called " cur- 29AveriIl v. Taylor, 8 N. Y. 44, 52; 33 The Real Prop. Law, § 39; Ben- Despard v. Churchill, S3 id. 192, 199; nett v. Rosenthal, 11 Daly, 91, 94. Moore v. Littel, 41 id. 66, 75 ; i R. S. 34 Supra, p. 136, note. 722, § 5 ; The Real Prop. Law, § 23 ; 35 § 20, The Real Prop. Law. Id., § 280; Matter of Althause, 63 App. 36 Goodeve, Real Prop. 33 ; Strahan, Div. 252, 255. Law of Property, 52; Challis, Real 30 § 21, infra. Prop. 42, 43. 31 Nellis V. Munson, 108 N. Y. 453. 37 yijg infra, §§ 24-35, The Real 32 Challis, 46. 47; Averill v. Taylor, Prop. Law. 8 N. Y. 44, 52; Burr v. Stenton, 43 id. 38 Co. Litt. 42a. 462, 46s ; Despard v. Churchill, 53 39 Rochester Savings Bank v. Bailey, id. 192, 199. 34 Misc. Rep. 247, 249. 138 Estates pur Autre Vie. tesy," or estate by the curtesy.^ If a wife survive her husband, she takes an estate for her own life, in any lands of which he may have been seised during coverture. Such estate is still called " dower." ** When estates for life are created by act of the parties, covenants in restraint of their alienation are sometimes supported.*^ An estate for life, though uncertain in duration, if reserving rent to grantor, may be subject, after twelve years, to the provision of the Constitution which prohibits leases of agricultural land for a longer period than twelve years.** Estates pur Autre Vie. Estates pur autre vie, or for the life of an other than grantee, probably originally arose by the assignment of an estate for the life of tenant for life.** But it does not necessarily now subsist by assignment only ; but estates for the life of third per- sons may be limited de novo to endure for the life of such third persons. It is now a freehold only during the life of the grantee even though limited to his heirs, and after his death has become a chattel real*^ so as to pass to personal representatives and thus defeat the old common-law right of any stranger to take possession during the life of cestui que vie.*^ If a person on whose life such an estate depends absent himself seven years he is presumed dead.*^ At common law an estate pur autre vie might be limited to endure (i) during the life of a single person; (2) during the joint lives of several persons in esse; (3) during the life of the longest liver of any number of persons in esse.^ While this principle has not been expressly abrogated if a remainder is limited on an estate pur autre vie, it must now be in fee, or, if in a term of years, for the residue of the term.** If such remainder is limited on the lives of more than two persons it vests on the death of the two first named, as if no other names had been introduced in the limitation.^" A contingent remainder limited on an estate pur autre vie, as it suspends the power 40 yi^g infra, under §§ 122, 280. ** Challis, 43. « Vide infra, under Article V. *" § 24, The Real Prop. Law. *2 Supra, p. 109 ; Jackson ex dem. 48 Co. Litt. 41b ; Crooked Lake Nav. Stevens v. Silvernail, 15 Johns. 278 ; Co. v. Keuka Nav. Co., 37 Hun, 9, 13 ; Livingston v. Stickles, 7 Hill, 253 ; Gillis v. Brown, s Cow. 388. Jackson v. Groat, 7 Cow. 285 ; De « § 841, Code Civ. Pro. Peyster v. Michael, 6 N. Y. at p. 491, ^8 Challis, 286; § 35, The Real Prop, overruled, ig N. Y. on another point. Law, infra. « Art. I, § 13, Const, of 1894; Par- « § 34, The Real Prop. Law, infra. jsh V. Rogers, 20 App. Div. 279. '^ § 35, The Real Prop. Law, infra. Incidents of Life Estates. 139 of alienation, can only be limited for two lives of third persons in being when the estate is created, or it is void.^^ And this is ex- pressly so in the limitation of a remainder on estates in terms of years.^^ Of the Incidents of Estates for Life. Tenant for life is entitled to " estovers " or " botes." These imply the necessary wood for fuel, repair of fences or buildings. But he is not permitted to cut down timber which serves as ornament, or which is not fit to be felled.*^^ If under this right tenant for life devastates the inheritance or com- mits waste, he is liable to remaindermen or reversioners."* But the doctrine of waste as understood in England was formerly thought inapplicable to a new and unsettled country in its entirety, and has been somewhat modified.^" Tenant for his own life is entitled to emblements or profits of the crop because the end of life is uncertain. Therefore, if such tenant for life sows the lands and dies before harvest, his executors or representatives may have the crop."® This right does not extend to those things which proceed annually of themselves without the labor of man, as grass and trees."^ This right of tenant is founded on the clearest equity,"* and finds statutory expression, in the case of widows, from antiquity to our own day. They may bequeath the crop in the dower land."* Tenant for life cannot dig for gravel, lime, clay, brick, earth, stone, or the like, except for reparation of buildings or the manuring of the land.®** Nor can he open a new mine, but he may dig and take the profits of mines that are opened.®^ In England tenant for life has the right prima facie to possession 51 § 32, The Real Prop. Law. ^8 2 Black. Comm. 122. See as to 52§ 39 The Real Prop. Law. tenant pur autre vie, Seaton v. Davis, 53 2 Black. Comm. 122; i Willard i Sup. Ct. (T. & C.) 91. Real Prop. y6 ; Sarles v. Sarles, 3 57 Willard, Real Prop. '77 ; 2 Crabb's Sandf. Ch. 601 ; Gardiner v. Bering, i Law Real Est. 52, § 1057. Pai. Ch. 573 ; Jackson v. Brownson, 7 58 Stewart v. Doughty, 9 Johns. 108, Johns. 227; Van Deusen v. Young, 29 112. N. Y. 9, 30; Rutherford v. Aiken, 2 59 s tat. of Merton, 20 Hen. Ill, Sup. Ct. (T. & C.) 281. chap. 2; § 18s, The Real Prop. Law. 5* Cruise Dig., tit. 3, chap. 11, ®* Co. Litt. 53b. " Waste by tenant for life.'' ^ Coales v. Cheeves, i Cow. 460, 55 Livingston v. Reynolds, 26 Wend. 474. 122; Willard, Real Prop. 78. 140 Incidents of Life Estates. of the title deeds in order to protect the enjoyment of his estate.^^ Tenants for life of personalty are entitled to stock dividends.^^ While such benefits belong to tenants for life, on the other hand, if the estate is charged with incumbrances, they are bound to pay the interest,"* but not the principal. So tenants for life must pay all ordinary taxes,*^ with an equitable proportion of assessments for permanent improvements.^® Some other permanent improvements to the estate are also to be apportioned between tenants for life and remaindermen,®^ although the presumption is that permanent im- provements are for the benefit of the estate. But there is no fixed rule."^ Leasing Powers. Tenant for life's power to make lease will be re- served for subsequent consideration.®^ Restraints on Alienation. While restraints on the alienation of estates in fee simple are unlawful, certain covenants against alienation of estates for life have been supported.'^'' But where an estate for life is given to a person, a mere direction not to alienate same without any limitation over is repugnant to the estate granted, and void.''^ Surrender and Merger. Estates for life may be surrendered to him who has the remainder or reversion f ^ or they may merge in the in- heritance when they come into the hands of him who has the fee, without the intervention of any other estate.'^^ Estates less than Freehold. Having pointed out the estates which are freeholds,^* we pass to the estates less than freehold, viz., estates for years, estates at will, and estates by sufferance.''® 62 I Wharton, Conv. 45. ™ De Peyster v. Michael, 6 N. Y. at 63 Stewart v. Phelps, 71 App. Div. p. 491 ; Livingston v. Stickles, 7 Hill, 91- 253; Jackson v. Groat, 7 Cow. 285; 6* Swaine v. Perine, 5 Johns. 482 ; Jackson v. Silvernail, 15 Johns. 278 ; § 233, The Real Prop. Law. supra, pp. 108, 109. 65 Cairns v. Chabert, 3 Edw. Ch. ■?! Bramhall v. Ferris, 14 N. Y. 41, 312; Sage V. City, 43 App. Div. 245. 44; Hallett v. Thompson, 5 Pai. at 60 Fleet v. Dorland, 11 How. Pr. p. 586; De Graw v. Clason, 11 id. 489; Miller's Estate, i Tuck. 346; at p. 140; Rome Exchange Bank v. Peck V. Sherwood, 56 N. Y. 615; Fames, 4 Abb. Ct. App. Dec. 83, 99; Gillespie v. Brooks, 2 Redf. 349, 364. supra, p. 109. 67Betts V. Betts, 4 Abb. N. C. 317, '^ Coe v. Hobby, 72 N. Y. 141, 146; 438; Miller's Estate, i Tuck. 346; Livingston v. Potts, 16 Johns. 28; Cromwell v. Kirk, i Dem. 383, 599. Schieffelin v. Carpenter, 15 Wend. 400, 68 Matter of Pollock, 3 Redf. 100 ; 405. Peltz V. Learned, 70 App. Div. 312. T3 y{je infra, pp. 142, 153. 69 Jnfra. ''* Supra. ''^ § 23, The Real Prop, Law. Estates for Years. 141 Estates for Years. Terms of years were not originally estates by the law of England, but pushed themselves into the rank of estates only by virtue of the statute of 21 Hen. VIII, chap. 16, enabling termor to falsify recoveries.''^ But before and ever since the intro- duction of the common law into New York tenancies for years, at will, and by sufferance have been recognized estates by the law of England,'''^ and as such passed into the law of New York, and have been applied to interests in allodial lands.'^^ Incidents of Estates for Years. Tenant for years is entitled to the same estovers that tenant for life enjoys, unless it is agreed to the contrary by some obligatory agreement.'^* He is also punishable for waste, and therefore is bound to keep the property in tenantable re- pair,*" and if the land is agricultural, to farm it in a husbandlike manner.*^ We have stated above that tenant-for-life's right to emblements, or the profits of cropping, depends on the uncertainty of the duration of the estate.*^ So it is with the right of tenant for years ; for if, by any reservation, the estate for years may suddenly be put an end to at the will of the reversioner, tenant for years is then entitled to crops sown by him and not garnered.*^ But where the term of tenant for years is fixed and certain he is not entitled to emblements ; for it is his own folly if he sow where he cannot reap.** Restraints on Alienation of Estates for Years. Since 21 Hen. VI, it has been assumed that restraints on alienation of estates for years are lawful and will be enforced,*^ and covenants of this nature against assignment or undertaking are frequently inserted in leases and usually enforced, although not favored.*^ 76 Challis, 47. 81 Middlebrook v. Corwin, 15 Wend. ■^^2 Black. Comm. 140. 170, 171; Sarles v. Sarles, 3 Sandf. 78 § 23, The Real Prop. Law. Ch. 601. "^ Supra, p. 139 ; 2 Black. Comm. 82 Supra, p. 139. 144- ®* Stewart v. Doughty, 9 Johns. 108. 80 Witty V. Matthews', 52 N. Y. 512; 84Whitmarsh v. Cutting, 10 Johns. Oakley v. Loaning, 8 Misc. Rep. 302; 360; Bain v. Clark, id. 424. Felton V. City of Cincinnati, 95 Fed. 85 y b. 21 Hen. VL 33 pi. 21 ; De Rep. 336 ; Sonn v. Weissmann, 29 Misc. Peyster v. Michael, 6 N. Y. at p. 491 ; Rep. 622; Brenner v. Walter, 15 App. supra, p. 109. Div. 29s ; Lynch v. Sauer, 16 Misc. 86 Taylor, Landlord & Tenant, § 402 Rep. i; Lichtig v. Poundt, 23 id. 632; seq.; Seaman v. Civill, 45 Barb. 267; Dept. of Health v. Wendel, 33 id. 100; Riggs v. Pursell, 66 N. Y. 193, 201; Read v. Bolger, 62 App. Div. 411; cf. supra, p. 109. Meserole v. Sinn, 34 id. 33; affd., 161 N. Y. S9. 142 Demises. Surrender. Estates for years may be surrendered to him who has the reversion or remainder.*'^ A surrender may be express or in fact, or by operation of law. It is express or in fact when tenant for years conveys, releases, or assigns all his interest to the rever- sioner.*® It is by operation of law when tenant for years accepts a new and inconsistent lease.*® By statute the rights of under ten- ants are expressly saved when the chief or mesne tenant surrenders the original estate.®" An express surrender of a term of years, if beyond one, must be in writing.®^ Merger. If estates for years or estates for life in any manner come into the hands of him who hath the original estate out of which they were granted, without the intervention of any other estate, they merge or are drowned by operation of law in the greater estate.®^ But courts of equity sometimes intervene to prevent a merger.®^ Demises. Estates for years are commonly associated with "de- mises " or " leases," ®* but an " estate for years " by the common law may be something else besides a lease or demise; it may be created by a will, a settlement, or a mortgage, no rent whatever being reserved. Long terms of a thousand years were formerly common in wills and settlements in England,®® and such terms were often kept alive for the purpose of attending and protecting the inherit- ance. These attendant terms have never been used in practice in New York,®^ many of the purposes for which they existed in England 8T Co. Litt. 338a ; Springstein v. ley v. James, 16 Wend, at p. 154 ; Schermerhorn, 12 Johns. 357; Coe v. Parsell v. Stryker, 41 N. Y. 480. Hobby, 72 N. Y. 141, 145. »» Hayes & Jarman's Forms of 88 Grave v. White, 87 N. Y. 463, 465; Wills. 379; Williams, Real Prop. 411- Harris v. Hiscock, 91 id. 340, 344; 419, 430; i Washb. Real Prop. 311 Schieffelin v. Carpenter, 15 Wend. 400, seq.; 2 Black. Comm. 142. Terms of 405- years were said to be anciently limited 89 Van Rensselaer v. Penniman, 6 to forty years. But this is doubted by Wend. 569 ; Livingston v. Potts, 16 Blackstone, who is confirmed by more Johns. 28 ; Schieffelin v. Carpenter, recent investigators (Pol. & Mait. Hist. IS Wend. 400, 405 ; Coe v. Hobby, 72 Eng. Law on " Laen Land "). Gilbert N. Y. 141, 145, 147; Smith v. Kerr, says long terms of years began again 108 id. 31, 36. in modern times in 14 Hen. VH. (See *" § 196, The Real Prop. Law. note to Sedgwick & Wait, Trial of »i § 207, The Real Prop. Law. Titles to Land, p. 8.) This is before 0^ Supra, p. 140. the time Blackstone mentions. (51 93 Vide infra, p. 153. Hen. VIH.) 9* 4 Kent Comm. 85 ; sed. cf. Haw- 9« 4 Kent Comm. 94. Terms of Years. 143 being rendered useless here by the recording acts protecting credit- ors. While there is now no positive prohibition against long terms of years involving urban lands in this State,®^ trust terms and terms to protect the inheritance are, as Chancellor Kent thought, opposed to the spirit of the Revised Statutes regulating uses and trusts in lands.*® Terms of Years. Rent is not the essential sign of a term of years or even of a demise or lease which may exist without a reservation of rent.*^ The origin of money rents is instructive in this connec- tion. Within a century after the Norman Conquest the services due from the praedial villeins had been generally commuted for money payments, and money rents had become very common by the reign of Edward III.^ Terms of years were probably first differentiated from life estates by the incident of rent in money or kind.^ But a term of years is not necessarily a lease reserving rent, although a lease reserving rent is a " term of years." The essential feature of tenancy for term of years is the certainty of the bound- ary of the tenant's interest.' In this it is distinguished from an estate in fee, which may endure forever, and originally from an estate for life. A Term of Years an Estate. A term of years is acutely called an anomalous estate because it grew up later than the feudal settle- ment and only ripened into the dignity of an " estate " when termor was given a remedy to falsify a recovery obtained on feigned titles. This was not until the reign of Henry VIII.* Since then terms of years have been regarded as " estates " in lands by the commenta- tors,^ although the interest of tenant for term of years survived only as a chattel interest, thus indicating its late origin.* The revisers 97 Vide infra, and also under § 21 lated to contract in some measure, of this act. See under § 23, The Real Prop. Law, 984 Kent Comm. 94. infra. 99 Taylor, Landl. & Ten., § 14; Hen- 3 Co. Litt. 4Sb. derson v. Henderson, 46 Hun, 509, * Challis, 46, 47. See remarks under 513; Strahan, Law of Property, 62. § 23, The Real Prop. Law, infra; cf. 1 I Gardner, Hist. Eng. 168, 248 ; Digby, Rel. Prop., chap. IH, § 2, par. Dalrymple, Feudal Prop., chap. 2, 17, who differs from Challis, but with- socage tenure. Vide infra, § 23, The out good reason. Real Prop. Law. ^ " Estates less than freehold." 2 2 Thus presenting a departure from Black. Comm. 140. the principle of tenure, whiclT relates ^ Supra, p. 141. to status; whereas terms of years re- 144 Agricultural Leases. classify terms of years for some purposes with estates in land in deference to the practice existing in their timeJ Terms of Years Bound by Judgments. Terms of years being chattels real are bound by judgments and decrees in this State.® Tenant in Possession of Term, When Trustee. Where a remainder is limited on an estate for years, the tenant in possession is to some €xtent a trustee, in respect of voluntary waste, for remaindermen.® Leases of Agricultural Lands. Long demises or terms of years of farming or agricultural lands were intended to be prevented in this State by the adoption of the Constitution of 1846, which provided that " no lease or grant of agricultural land, for a longer period than twelve years, in which shall be reserved any rent or service •of any kind, shall be valid." ■"* This provision is contained in the present Constitution.^^ It is expressly confined to agricultural lands and to terms of years on which rents or services are reserved.^* It has expressly no reference to lands not agricultural, or to mining leases.^' This measure was adopted in view of the agrarian disturb- ances which had grown out of long or perpetual leases and grants of farms subject to a rent. The tenants objected to the provisions of these leases and grants, and much political and social discon- tent ensued.^* This provision of the Constitution of 1846, restrict- ing demises to twelve years, was intended to prevent such perpetual leases, and a recurrence of like agitations. Before this time per- petual rents of agricultural lands were frequently reserved in New York on grants of estates in fee.^^ The perpetual reservation was then lawful by the law of both the province and the State of New T § 20, supra; Bennett v. Rosenthal, 1* Jenkins' Polit. Hist, of New York, II Daly, gi. Appendix; cf. Massachusetts Nat. * See under § 39, The Real Prop. Bank v. Shinn, 160 N. Y. 360, 367. Law. ^^ Springstein v. Schermerhorn, 12 9 Lord Hardwicke in Garth v. Cot- Johns. 357 ; Hawley v. James, 16 ton, I White & Tudor, Lead. Cas. in Wend. 154, 275 ; Jackson ex dem. Eq. 825. Van Rensselaer v. Hogeboom, 11 10 Const, of 1846, art. i, § 14. Johns. 163; Dutch Church in Garden 11 Art. I, § 13 ; supra, p. 78. Street v. Mott, 7 Paige, at p. 82 ; Jack- 12 Stephens v. Reynolds, 6 N. Y. 454, son ex dem. Blanchard v. Allen, 3 458; Parsell v. Stryker, 41 id. 480; Cow. 220; 2 R. L. 267; Church v. Odell V. Durant, 62 id. 524; Clark v. Shultes, 4 App. Div. 378; Hunter v. Barnes, 76 id. 301; Parish v. Rogers, Hunter, 17 Barb. 25; Bradt v. Church, 20 App. Div. 279, 285. no N. Y. 537. 13 Kids, p. 14s, infra; Massachusetts Nat. Bank v. Shinn, 160 N. Y. 360. Leases for Twenty-one Years. 145 York. If an agricultural lease exceed twelve years it is not alto- gether void it seems, but is good for eleven years and a fraction. ^^ Leases of Urban Lands. As the constitutional restraint does not extend to grants, or to demises, of lands situated in cities or large towns,^'^ (wherein land is not agricultural), the law of these long or perpetual estates remains of practical interest at the present time. The older law reports of New York are full of adjudications bear- ing on estates for years, and many of the opinions cannot be under- stood without reference to historical considerations; for the law concerning them is of very ancient origin. There can be no ques- tion that pure leases or demises, where a reversion exists in the grantor or lessor, are still valid if the land is not agricultural, even if such demises are made almost or theoretically perpetual.^^ Rents Reserved on Grants in Fee. How far grants in fee reserving rent remain valid is a question which will be further considered under the next section.^® Leases for Twenty-one Years, with Renewals. A custom of making ur- ban leases for twenty-one years, with renewals, had grown up before the act of 1846,^° taxing longer leases. The custom was prob- ably in New York City originally due to old Trinity Church leases. In England corporations were frequently restricted by statute to terms of twenty-one years, in order to prevent impoverishing their successors; so tenants in tail, and even the Crown.^^ Whether these acts of Parliament extended to New York is doubtful, but they may, nevertheless, account for the custom.^^ When all the 18 Parish v. Rogers, 20 App. Div. Thompson, 16 Misc. Rep. 638, 639 ; 279; Stephens v. Reynolds, 6 N. Y. Martin v. Rector, 118 N. Y. 476; 454; cf. Hart V. Hart, 22 Barb. 606, Foltz v. Huntley, 7 Wend. 210; Kip where covenants for renewal beyond v. N. Y. & Harlem R. R. Co., 67 N. twelve years declared void. Y. 227 ; Massachusetts Nat. Bank v. 1'' Cf. Robert v. Thompson, 16 Misc. Shinn, 163 id. 630. Rep. 638, 639. 19 The Real Prop. Law, § 21. 1* Dutch Church in Garden Street 2" Chap. 327, Laws of 1846, as V. Mott, 7 Paige, at p. 82; Church v. amended by chap. 809, Laws of 1873. Shultes, 4 App. Div. 378 ; Church v. 21 Comyn, Landl. & Ten. 12 ; 32 Wright, Id. at p. 312; Van Rensselaer Hen. VHI, chap. 28; i Eliz., chaps, v. Dennison, 35 N. Y. 393, 400 ; 2 R. L. 10, 19 ; 39 id., chap. S> § 2 ; i Anne, 267, limits Columbia College to leases chap. 7, §§ s, 6. of sixty-three years. Roberts v. 22 m. A. Baptist Church v. Baptist 10 146 Leases for Twenty-one Years. English acts were repealed, except those then re-enacted,^ there was certainly no reason for terms of this precise duration until the act of 1846, mentioned above, twice taxed longer terms.** Rents reserved in any " lease in fee " or for life, or for more than twenty- one years, are now taxable*^ as they were under the act of 1846.** But a covenant will not be construed to be one for perpetual re- newals, as such a covenant is, in this State, said to tend to a per- petuity.^^ Where a lease, with covenants for renewal, contains an arbitration clause to determine the value of the fee and the im- provements separately, as a basis for renewal or determination, it is incumbent on both parties to act with diligence and caution.^ A person holding under a lease renewable forever, is, in Ohio, the owner so far as to authorize him alone to sign consents to public improvements.*^ If lessee refuse to arbitrate under the covenant he is liable for use and occupation.^ Church, 46 N. Y. 131, 141 ; De Ruyter V. The Trustees of St. Peter's Church, 3 Barb. Ch. 119. 23 Jones & Varick's Revision of 1788 and 1789. 2* Van Rensselaer v. Dennison, 8 Barb. 23, 35 N. Y. 393. 25 § 8, Tax Law, chap. 24, General Laws ; chap. 908, Laws of 1896. 26 Chap. 327, Laws of 1846; Wood- ruff V. Oswego Starch Co., 177 N. Y. 23- 2^ Syms V. Mayor, etc., 105 N. Y. 153; Banker v. Braker, 9 Abb. N. C. 411; Piggot V. Mason, i Paige, 412, 415; Carr v. Ellison, 20 Wend. 178; cf. Rutgers v. Hunter, 6 Johns. Ch. 215. While, at common law, cove- nants for perpetual renewal are not favored, there is nothing unlawful about them. Lord Waterpark v. Aus- ten, I Jones, 627, n. ; Calvert v. Gason, 2 Sch. & Lef. s6i. And see Comyn, Landl. & Ten. 186; 4 Kent Comm. 109; I Hilliard, Real Prop. 213; 2 id. 401. In California covenants for in- definite renewal are held void. 5 Cal. 64, cited 2 Sharswood & Budd, Lead. Cas. 52; cf. Howard v. Larkin, 119 Fed. Rep. 1005. And see as to agricultural lands in New York, Hart v. Hart, 22 Barb. 606. 28 Van Beuren v. Wotherspoon, 12 App. Div. 421; s. c, 22 id. 628, modified, 164 N. Y. 368; again, s. c, 74 App. Div. 123. And see as to meas- ure of value. Bright v. Boyd, 2 Story, 60s; Van Cprtlandt v. Underbill, 17 Johns. 405; Livingston v. Sage, 95 N. Y. 289; Matter of Coatsworth, 160 id. 114, reversing 37 App. Div. 295. And as to no necessity of inserting in renewed lease covenants for further renewal, see Carr v. Ellison, 20 Wend. 178; Banker v. Braker, 9 Abb. N. C. 411; Willis V. Astor, 4 Edw. Ch. 594; Muhlenberger v. Pooler, 40 Hun, 526 ; Gomez v. Gomez, 81 id. 566; s. c, 147 N. Y. 19s; Schoellkopf v. Coats- worth, 55 App. Div. 331 ; as to other covenants, Rutgers v. Hunter, 6 Johns. Ch. 215. 29 St. Bernard v. Kemper, 45 L. R. A. 662. 30 Conger v. Esler, 85 App. Div. 564 Rent. 147 Tenant Paying Taxes. If it be desired to make the tenant pay taxes and assessments under a lease containing covenants for renewal or a perpetual lease the draughtsman must exercise great care,^^ and some such clause as the following is suggested : " The lessee covenants to pay and discharge all taxes, ordinary and extraordinary, and all assessments made on the demised premises during the term or any renewal thereof, whether the same be on the term or on the reversion, so that said land demised and the interest of the lessor therein shall be free from all such taxes and assessments, and this lease shall yieM to the lessor not less than the net annual rent re- served throughout said term or any renewal thereof." ^^ Perpetual Leases and Itlechanics' Liens. It may be well to observe that the Mechanics' Lien Law has introduced a new element of un- certainty in a scheme of perpetual leases, for the usual covenants, that tenant shall build, repair, etc., may make the reversioner hold subject to such liens.^* Rent and its Collection in Law. As rent furnishes usually the main consideration to the lessor on the creation of those terms of years, commonly called " demises " or " leases," a brief review of this subject may not be amiss in connection with our consideration of " estates for years." Many of the more difficult historical problems mentioned in the adjudications bearing on terms of years turn upon the question of liability for rent. Now, the obligation to pay a sum of money as rent for land, independently of the rendi- tion of any feudal service, and upon a purely contractual basis, is a conception of later origin than the common-law remedies for the collection of rent.^* Yet the common-law forms and remedies continued to regulate the collection of rent after this modification of feudal tenures. The clash of the legal theories of contract and SI Woodruff V. Oswego Starch Fac- ^^ Rice v. Culver, 172 N. Y. 60, dy ; tory, 70 App. Div. 481 ; Oswald v. Gil- chap. 418, Laws of 1897, being chap, bert, II Johns. 443. See note 29 Abb. 49 of the General Laws. N. C. 161, and cf. Beals v. Providence 34Xhe feudal settlement and the Rubber Co., 11 R. L 381. later feudal remedies for violation of 32 This form of covenant was con- feudal obligations took no note of stantly used in practice by the late money rents, or of rents payable in Hon. William S. Groesbeck, a very provisions. Later on the law was able lawyer of this country. Cf. forced to consider them. Woodruff V. Oswego Starch Factory, 177 N. Y. 23, 32. 148 Rent. tenure is discernible in the older law reports of New York, and it adds to the reader's difficulty unless he has a firm grasp of principle.^^ Rent Reserved on Terms of Years. Rent reserved on terms of years can be reserved only for grantors and their assigns, and not for a third person or a widow of grantor, as the latter reservation is a testamentary provision, void under our Statute of Wills.^^ In the absence of any other provision, rent follows the reversion without assignment.^^ Rent Defined. Rent is a profit, return, or advantage, issuing out of a corporeal hereditament.^ Rents, how Classified. Before the formal abolition of the feudal system, in the days of King Charles 11,^^ rent was divided by law- yers into " rent service," " rent charge " and " rent seek." *** Rents issuing out of an estate granted in fee are known as quit rents,*^ in manors or seigniories,*^ or as fee-farm rents.*^ But outside of manors a fee-farm rent was commonly called a " rent charge." ** As quit rents and fee-farm rents belong to estates of inheritance or to estates in fee, we may reserve our consideration of perpetual rents until we come to the next section of this act.*^ Quit rents in seigniories usually depend on tenure and not on reservation.*^ In mining leases the rent is generally a royalty and a fixed sum, called a " dead rent." " Rack rents " are the usual rents reserved on terms of years and represent the full annual value of the land and improvements. Rack rents are contradistinguished from fee-farm rents or quit rents which are usually nominal. Rent service had some corporeal service connected with it, at least, fealty.*'^ Rent 35 yiiig infra under this section. *2 jsjew York, being a proprietary 36 Priester v. Hohlock, 70 App. Div. government at first, was a feudal 256, 259 ; Taylor, Landl. & Ten., i 155 ; seigniory. Penn v. Lord Baltimore, 3 Kent Comm. 463. i Ves. Sr. 441. 3T 3 Kent Comm. 463. *3 2 Washb. Real Prop., chap. I ; 38 Co. Lift. 141b, and Thorn v. Van Rensselaer v. Hays, 19 N. Y. 68, de Breteuil, 86 App. Div. 405, 415, 76; Dalrymple, Feudal Property, 33, 416 ; Van Rensselaer v. Chadwick, 22 ** Tomlin Lavr Diet., sub voce N. Y. 32, 33. " Rent." 39 12 Car. II, chap. 24, supra, p. 43. *S § 21. ^OLitt, § 213; Cornell v. Lamb, 2 *^Verschoyle v. Perkins, 13 Irish Cow. 652 ; 3 Kent Comm. 460 ; Bradby, Eq. 72, 82. Distress, 23 seq. *'' Co. Litt. 142a. *i De Lancey v. Piepgras, 138 N. Y. 36, 39- Rent. 149 charge was where the owner of the rents had no future estate or re- version in the land, but reserved a right of distress, or re-entry.** Rent seek was a rent reserved by deed without clause of distress or re-entry.*^ Theories of the Remedies for Nonpayment of Rent. In the time of Littleton a certain money rent, as it was legally associated with the feudal fruits of tenure, is " rent service." It cannot in law, even in Littleton's day, be disassociated from the service called fealty.^" As the great common-law remedy for all the fruits of tenure was distress, distress became the main common-law remedy for the collection of a certain money-rent,®^ and remained such in this State until 1846 when this remedy was abolished.®^ During the first two centuries of our political history, the right to distrain for rent depended on the existence of the obligation of fealty or tenure or else on a rent charge. Unless fealty was theoretically due or there was a rent charge, the landlord could not distrain.^^ The rent was " rent seek," and the remedy complicated.^* The abolition of tenure and the declaration that certain lands were allodial, there- fore, suggested a legal difficulty where allodial lands were rented and the rent not paid.®® But as in all the acts and provisions abolish- ing the socage tenure, rents and socage services were always ex- pressly saved,®® the same remedy by distress was accorded in New York on leases of the lands declared allodial.®^ Thus, the remedy by distress became, necessarily, independent of tenure or fealty, and it could now be imputed to contract independently of feudal considerations, or the ancient common law. Rents Reserved on Estates in Fee. The Statute of Quia Emptores, it will be remembered, destroyed the existence of tenure between a *8 Co. Litt. 143b ; Van Rensselaer Van Rensselaer v. Hays, 19 N. Y. at V. Hays, 19 N. Y. 68; Van Rensselaer p. 76; 3 Kent Comm. 461. V. Chadwick, 22 id. 32. ^* 3 Kent Comm. 461. There was a *9 Co. Litt. 143b. remedy in equity for a rent seek. so Litt., § 213. Story, Equity Jurisp., § 684. 51 Cf. Tomlin's note to his edition ®® 3 Kent Comm. 462, note. of Littleton, 242; Smith v. Colson, 5^12 Car. H, chap. 24; 2 J. & V. 67, 10 Johns. 91. 68; i R. L. 380; i R. S. 718, § 4; 52 Chap. 271, Laws of 1846. Const, of 1894-5, art. i, § 11. 53 See Cornell v. Lamb, 2 Cow. 652, 67 3 Kent Comm. 462, note ; i R. S. 653; Co. Litt. 142a; id. n. S, 144a; 747, § 24; chap. 274, Laws of 1846; 2 R. S. 295, § IS. 150 Rent. common person, who granted a fee simple estate, and his grantee.^* Therefore, after that act a perpetual rent reserved on an estate in fee could not be enforced by distress by a common person, unless the rent was charged on the land by a special clause of distress.^® But the Statute of Quia Emptores had no reference to terms of years, but only to grants in fee.^" A tenure of some kind sufficient to support a right to distrain existed after that statute between a lessor of a term and lessee,^^ as it did between a donor and a donee of a fee tail.^^ The Statute of Quia Emptores only destroyed sub- infeudation when the grant was in fee. Modern Right of Action to Recover Rents. At the present day both ejectment and the summary remedy for the collection of rent due on terms of years are regulated by statute,''* and after considerable litigation perpetual rents reserved on grants in fee have also been subjected to appropriate remedies regulated by statute.^* A change of remedies on a lease by act of the Legislature is always presumed to be within the contemplation of the parties,^^ provided such changes of remedies are not an impairment of the contract within the Federal Constitution. Assignees of Reversions. At common law the assignee of a rever- sion could not enter for condition broken, nor could he take ad- vantage of a breach of covenant in a lease by his assignor.^^ The statute, 32 Henry VIII, chapter 34, first gave assignees of rever- sions all the rights of their assignor, and it gave the tenant the same remedies against the assignee that he had against the assignor.®^ 58 18 Edw. I ; 2 Inst. 501. by the common actions for enforcing 59 Mr. Hargrave, note S, Co. Litt. all contracts or by the substitutes for 144a; Van Rensselaer v. Hays, 19 N. the common-law real actions. Cf. Y*. at p. 76 ; Challis, 3. Bradt v. Church, no N. Y. 537; 80 Litt, § 132; Burton, Compend. Church v. Wright, 4 App. Div. 312, Real Prop., §§ looi, 1002; Bingham 316. & Colvin on Rents, 40. 64 See text under next section (21) "1 Saunders v. Hanes, 44 N. Y. 353, of this act. 361. «5 Martin v. Rector, 118 N. Y. 476; 62 Burton, Compend. Real Prop., Van Rensselaer v. Snyder, 13 N. Y. § 1003. 299. 63 Code Civ. Proc, chap. XIV, tit. 66 Co. Litt. 214a, 214b, 2isa. And I, and chap. XVII, tit. 2. In the city see remarks infra under i 193, The of New York see the " Consolidation Real Prop. Law. Act." The basis of the remedies not 67 i,j^ supra. of feudal origin are regulated either Estates at Will. 151 This act extended to the province of New York and was re-enacted by the State of New York at the time of the general revision of the English statutes extending here and continued in force by the first Constitution.^ Finally it was revised in the Revised Statutes of 1830,®^ where it remained until transferred to article 6 of the present law.''" At common law the right to maintain actions of annuity and assize of novel disseisin followed the ownership of the rent when it passed from the person to whom it was reserved, whether it passed by descent or assignment.''^ Attornment by the tenant was necessary to entitle the assignee to distrain or to main- tain annuity, and actual seisin of the rent by payment of a part, to authorize an action of assize; but the necessity of attornment was removed by statute.^^ Estates at Will. An estate at will is where lands and tenements are leased, to be held at the will of the lessor.''^ At common law it is determined by a conveyance of the owner of the land to a third person.''* The tendency of modern courts is to construe this tenancy as an estate from year to year.''^ Estates at will are con- ventional not common-law estates. Estates at will may now be terminated by notice of not less than thirty days.''^ Estates by Sufierance. An estate by sufferance, by the common law, is one where tenant comes into possession of land by lawful title, and holds over by wrong after the determination of his in- 68 2 J. & V. 184 ; I R. L. 363. Misc. 724 ; cf. Harris v. Frink, 49 69 I R. S. 747, § 23 ; chap. 274, Laws N. Y. 24, 32. of 1846. Tiparmalee v. Oswego & Syracuse 10 Infra, § 193, The Real Prop. R. R. Co., 6 N. Y. 74; Jackson ex Law. dem. v. Bryan, I Johns. 322. See Ti Van Rensselaer v. Read, 26 N. § 198, The Real Prop. Law, as to Y. at p. 564. present law. ''S Van Rensselaer v. Read, supra; w 7j,e Real Prop. Law, § 198 ; Peo- 4 Anne, chap. 16, § 9; Van Schaack pie ex rel., etc.. Cooper v. Fields, i N. Y. Laws of 1773, p. 769 ; 2 J. & V. Lans. 222, 239 ; Taylor, Landl. & Ten. 281 ; I R. S. 739, § 146 ; § 193, The § 59 ; Post v. Post, 14 Barb. 253, 257 ; Real Prop. Law. Jennings v. McCarthy, 40 N. Y. St. ''^4 Kent Comm. no, in; Litt, Rep. 678; cf. Coudert v. Cohn, 118 § 68 ; Talamo v. Spitzmiller, 120 N. Y. N. Y. 309 ; English v. Marvin, 128 id. 37; Burns v. Bryant, 31 id. 453; Lar- 380, 385; Prindle v. Anderson, 19 ned V. Hudson, 60 id. 102 ; Sarsfield Wend. 391 ; Jackson ex dem., etc. v. V. Healy, 50 Barb. 245 ; Post v. Post, Bryan, i Johns. 322, 324. 14 id. 253 ; Burkhart v. Tucker, 27 ^6 § ipg^ The Real Prop. Law. 152 Estates by Sufferance. terest." Independently of statutes a tenant by sufferance is not entitled to notice to quitJ^ But the statute requiring notice of thirty days to terminate tenancy by sufferance''^ has now no reference to a holding over by tenant for years without the consent of the landlord.®" Conditions Annexed to Estates of Freehold and Estates for Years. The consideration of this subject is reserved for the commentary on the next section of this act.®^ Fixtures. " Fixtures " are those things which are by law deemed to be affixed to the freehold and inseparable from it.*^ As a general rule of law whatever is affixed to lands or buildings becomes a part of them, or real property, and cannot be removed without the con- sent of the owner : " Quicquid plantatur solo, solo cedit." ^ It is a presumption of law that everything affixed to the land passes with it, and consequently a house passes as part of the land without express words of conveyance.®* It is also a presumption of law that whatever is affixed to the soil was intended for the permanent improvement of the freehold and to be annexed to it.®^ But as this presumption is not always a " prcssumptio juris et de jure'' or an irrebuttable presumption of law, the courts have laid down certain exceptions to the presumption in question and then regard the issue as primarily one of intention;®* thus, if a tenant for years affixes something to the soil or building for the purposes of his trade, manu- ■^■^ Co. Litt. S7b; 4 Kent Comm. ii6; cited under § ig8. The Real Prop. sed. cf. § ig8. The Real Prop. Law; Law, infra. Smith V. Littlefield, 51 N. Y. 539; Liv- ®i § 21, The Real Prop. Law. ingston v. Tanner, 14 id. 64 ; Bristor ^^ Dubois v. Kelly, 10 Barb. 496. v. Burr, 12 N. Y. St. Rep. 638. ®3 Potter v. Cromwell, 40 N. Y. 287; ''■8 Taylor, Landl. & Ten., § 64. This McRea v. Bank of Troy, 66 id. 489; tenancy may be determined by mere Kissam v. Barclay, 17 Abb. Pr. 360. entry. Archibald, Landl. & Ten. 78; 8*AlIaway v. Wagstaff, 4 H. & N. Jackson v. Parkhurst, S Johns. 128 ; 307 ; Mott v. Palmer, i N. Y. 564. 569 ; Jackson v. McLeod, 12 id. 182. See Ritchmeyer v. Morss, 3 Keyes, 349. the present law, stated under § 198, ^ Potter v. Cromwell, 40 N. Y. 287 ; The Real Prop. Law. Smith v. Benson, i Den. 176. T9I R. S. 745, § 7; The Real Prop. 86 Potter v. Cromwell, 40 N. Y. Law, § 198, infra. 287; McRea v. Central Nat. Bank, 66 80 Rowan v. Lytle, 11 Wend. 616; id. 489; N. Y. Life Ins. Co. v. Alli- Smith V. Littlefield, 51 N. Y. 539; son, 107 Fed. Rep. 179; Pfluger v. Coudert V. Cohen, 118 id. 309; note to Carmichael, 54 App. Div. 153, 154; § 64, Taylor, Landl. & Ten., and cases Conde v. Lee, 55 id 401. Fixtures. 15S factory, or business, the presumption of law is rebutted,^^ unless there is a clearly expressed intention to the contrary .^^ The general rule or presumption of law is much relaxed for the convenience of trade in controversies between landlord and tenant f^ but the general rule is not relaxed between grantor and grantee,®" or between vendor and vendee, mortgagor and mortgagee f^ or between heirs and executors or administrators ;®^ or between insured and in- surers,®^ or where property is taken by right of eminent domain.®* A tenant may, however, lose his right to fixtures by renewing his lease without the reservation of his right to remove them,®^ or by leaving them unremoved after the tenancy expires.®^ Fixtures when severed from the land may become again personal property ;®'' and tenant in fee simple by disannexing them may al- ways dispose of them as personalty, in view of his unrestricted ■rights of property. Derivative Estates and Merger. All estates other than fee-simple are derived out of greater estates, and are, therefore, in reference to the original, derivative estates.®* The opposite process by which deriva- tive estates when they come into the hands of him that has the original estate is called merger.®® By merger the derivative estate ceases to exist at law but may be kept alive in equity to subserve s^Mottv. Palmer, I N. Y. S7o; Mc- ®2 Miller v. Plumb, 6 Cow. 66,e;; Rea v. Cent. Nat. Bank, 66 id. at p. § 2712, Code Civ. Proc. ; McRea v. 497 ; GlolDe Marble Mills Co. v. Quinn, Cent. Nat. Bank, 66 N. Y. at p. 495 ; 76 id. 23; § 2712, Code Civ. Proc; Buckley v. Buckley, 11 Barb. 43. Ritchmeyer v. Morss, 3 Keyes, 349, 93 Adams v. Greenwich Ins. Co., 9 351; Massachusetts Nat. Bank v. Hun, 45 ; afifd., 70 N. Y. 166. Shinn, 18 App. Div. 276, 279. 9* Matter of the Mayor, 39 App. 88 I H. Black. 259, note a, 260; Div. 589. Center v. Everard, 19 Misc. Rep. 156 ; 85 Laughran v. Ross, 45 N. Y. 792 ; Smith V. Benson, i Den. 176 ; Sheldon Hayes v. Schultz, 33 Misc. Rep. 137 ; V. Edwards, 35 N. Y. 279. Stephens v. Ely, 14 App. Div. 202; 89 Reynolds v. Shuler, 5 Cow. 323; aflfd., 162 N. Y. 79; cf. Lewis v. O., N. Walker v. Sherman, 20 Wend. 636, & P. Co., 125 id. 341 ; Bernheimer 638, 655. V. Adams, 70 App. Div. 114. 90 Miller v. Plumb, 6 Cow. 665; 96 Talbot v. Cruger, 151 N. Y. 117. Matter of the Mayor, 39 App. Div. 9TCi-igson v. Stout, 17 Johns. 116. 589, S9S. ®* Challis, 50. 91 Pratt V. Baker, 92 Hun, 331; 99Krekeler v. Aulbach, 51 App. Snedeker v. Warring, 12 N. Y. 170; Div. 591; Ewell v. Hubbard, 46 id. McFadden v. Allen, 134 id. 490. 383 ; vide supra, pp. 140, 142. 154 Estates, how Conveyed. some useful purpose.^ An intervening estate will prevent a merger at law.^ Estates, how Conveyed or Created. Since the Revised Statutes, the usual modes of conveyance between living persons have been the " grant " or deed of conveyance,^ and the lease. In addition to these, if an entire derivative estate is to be transferred an assignment is recognized.* This statute regulates grants and recognizes leases as the usual form of conveyance of estates less than freehold.® 1 James v. Morey, 2 Cow. 246; ^grendt v. Brendt, 25 Misc. Rep. Betts V. Betts, 9 App. Div. 210; Mat- 359. ter of Gilbert, 104 N. Y. 200; Brendt 3§§ 207, 208, 209, 211, The Real V. Brendt, 25 Misc. Rep. 359; Zar- Prop. Law. kowski V. Schroeder, 71 App. Div. * § § 205, 227, The Real Prop. Law. 526 ; Coon V. Smith, 43 Misc. Rep. ^ § 207, The Real Prop. Law, and 112; et vide infra. see Index, "Lease." The Real Property Law. 155 § 21. Estates in fee simple and fee simple absolute. — An estate of inheritance continues to be termed a fee simple, or fee, and, when not defeasible or conditional^ a fee simple ab- ' solute, or an absolute fee. Formerly i Revised Statutes, 722, section 2: § 2. Every estate of inheritance, notwithstanding the abolition of tenures, shall continue to be termed a fee simple, or fee ; and every such estate, when not defeasible or conditional, shall be termed a fee simple, or an absolute fee.^ Estates of Inheritance. The quantum of an estate of inheritance, by the terms of this section, remains the same as before the Revised Statutes. The term " fee " is now coextensive with " estate of in- heritance.'' Since the abolition of the feudal system a " fee " has always meant an estate of inheritance, not a subject of tenure.'' The term " fee simple," by a series of gradations, extends back to the feudal times when it denoted a fief or " feud " of inheritance passing to heirs generally. It was soon contradistinguished from a fee con- ditional, and from a fee qualified, or one limited to some particular heirs, exclusive of others.* At the present day a " fee " is the greatest interest that can be granted in real estate.® Fee Simple and Fee Simple Absolute Contrasted. The Revised Statutes, in the section quoted above, contrast a " fee simple " and a " fee sim- ple absolute," although the terms are originally ejusdem generis, de- noting strictly the same thing, an inheritable estate passing to heirs generally.^" A fee simple may, however, be divested by the death of tenant in fee simple before the termination of a precedent estate." Text-writers in this State not infrequently divide fees into fees absolute, fees conditional, and fees qualified.^^ But this division in reality now refers to the character of the various limitations of a fee simple, and not to the character of the fee itself,^* which is always an estate of inheritance passing to heirs generally, as contradistin- guished from an estate tail, or one passing to particular heirs. The revisers obviously intended, by the contrast mentioned in this sec- tion, to preserve the different modes of limitation of a fee simple 6 Repealed, chap. 547, Laws of 1896. Jackson v. Van Zandt, 12 Johns. 169, ^Challis, 167. 177. 8 Co. Litt. lb; 2 Black. Comm. no. " Rudd v. Cornell, 58 App. Div. * Matter of Brookfield, 176 N. Y. 207, 216. 138, 146; Goodeve, Real Prop. 82. 1^4 Kent Comm. 4. 10 Lott v. Wykofif, 2 N. Y. 355, 357 ; is Challis, chap. 17. 156 Estates in Fee. as far as was consistent with the other new rules. Thus, it was intended that a fee might still be limited conditionally, or with a defeasance.^* The distinction which the revisers made between a " fee simple " and a " fee simple absolute " makes this point con- clusive ; for it is a distinction which related directly to existing and contemporaneous classifications of fees^^ and to well-known limita- tions of estates carved out of fees simple. Classification of Fees. Fees and estates have been long variously classified by writers on the laws of England. Those classifications in this State ought now in reality, as already suggested, to be based on the nature of the limitation creating the estate, for the nature of an estate in fee simple is not changed by the limitation of some lesser or qualified estate carved out of it. The nature of such limitations being thus confused with the nature of the fee simple, it is ex- pedient to consider them in connection with the classificatione of fees. Since the Statute of Quia Emptores no one in England (except possibly the Crown and Parliament) can create a new estate. All that may be done is to carve out derivative estates or assign existing estates. By reason of the changes, statutory and' fundamental, in this country, the old classification of fees has become obsolete, and we should now classify fees and estates with reference to the char- acter of their limitations, rather than with reference to their im- mutable nature, as fixed by reformatory statutes. Limitations of Estates in Fee. The limitations which an owner of a fee simple may now make in transmitting his own estate of in- heritance to another by purchase or devise are marked out by the law. In this State the common law still furnishes, in substance, the law of estates in possession; at least in the absence of any alterna- tive statute of the State.^^ But this article of this statute now regu- lates exclusively the limitation of future or derivative estates.^^ But as it has long been a custom of writers to classify fees rather than their limitations we must defer to it. However, we may point out that Chancellor Kent, ignoring a very comprehensive, yet in- volved, classification by Mr. Preston, prefers Lord Coke's classifica- 1* Willard, Real Prop. 52 ; Norris v. I8 Williams v. Williams, 8 N. Y. 525, Beyea, 13 N. Y. 273, 284; Vanderzee 541; Bogardus v. Trinity Church, 4 V. Slingerland, 103 id. 47; Matter of Paige, 178, 198. Miller, 11 App. Div. 337; Chapman v. i'' Hawley v. James, 16 Wend. 61, Moulton, 8 id. 64. 128. IB Vide infra, " fees determinable." Fee Simple. 157 tion, and then states that he will use the terms " qualified," " base " and " determinable " fees promiscuously.^^ Yet in no technical sense were these terms equivalents. Base Fees. A base fee strictly at common law is one which springs from a fee tail;^^ but, as Mr. Preston points out, every estate not simple and absolute in regard to continuance of time is base in refer- ence to one possessing these attributes. It is in this large sense and with a view to this distinction that the epithet base is now generally applied to estates.^" This secondary or vulgar use of the term base fee has, no doubt, been adopted by writers of the first rank.^^ It has not been adopted universally, for, as stated above, a base fee strictly is one derived from a fee tail, and some very accurate writers con- fine their use of the term to fees so derived.^ Fees Simple now the Only Fees in New York. There are now in New York no fees other than fees simple. Fees tail and fees conditional at common law having been abolished as estates^ or converted into fees simple the instant they arise,^* the only fees now known to the law of this State are fees simple or pure fees, sometimes, in contrast to a qualified limitation, called fees simple absolute. Conditional fees, which were at common law fees tail before the Statute De Donis,^ and " qualified fees," or fees passing by descent to heirs of a particular ancestor,^'' are both now unknown in practice in New York although good formerly at common law. When the statutes abolishing entails were first enacted in this State it was claimed that fees conditional at common law were restored by such acts. But this contention was said to be a strained construction of the statutes and repudiated.^^ The act of 1786,^ "An act to abolish entails," etc., was certainly broad enough to act also on conditional fees 18 4 Comm. 9. 24 J R s. 722, § 3 ; infra, § 22. 1^ Cruise, Dig. tit. 2, chap. 2, § 14 ; 25 Challis, 209 ; cf. i Sanders, Uses Challis, 44, 264; Tudor, Lead. Cas. & Trusts, 210. Real Prop. 74s ; Lee, Abstracts of ^e Challis, 215. Title, 85. 2T Johnson ex dem., etc. v. Van 20 1 Prest. Est. 439 ; Matter of N. Y., Zandt, 12 Johns. 169, 172, 177 ; Wilkes L. & W. R. Co., los N. Y. 89. V. Lyon, 2 Cow. 333. But see as to 21 2 Black. Comm. 109 ; 4 Kent the effect of the repeal of the statute Coram. 9 ; 2 Crabb, Law Real Prop. 9. De Donis in England, Challis, 231 ; 2 22 Challis, 44; Pollock, "The Land Black. Comm. 361. Laws." 108. 28 Chap. 12, Laws of 1786 ; i J. & V. 23 Chap. 2, Laws of 1782; i J. & V. 245. 24S- 158 " Limitation of Estate " Defined. before the Statute De Bonis. So we may regard conditional fees at common law as within the purview of that act and always there- after turned into fees simple in this State. So qualified fees, except in the case of trustees of express trusts, must have disappeared with the act of 1782 prescribing a new course of descents for estates in fee and altering the common law.^® It would probably not be competent after this statute for tenants in fee simple to make any limitation in fee which should alter the statutory course of descents.^* It would seem, however, that there may now be a qualified fee simple, under section 290a of this act, and a fee determinable. But all estates of inheritance in the State of New York are now fees simple. Yet, as a fee simple is regarded as either absolute^''- or determinable^^ according to the nature of its limitation, we may for convenience continue to divide fees into " fees simple absolute " and " fee simple determinable or base," and also fees simple qualified as denoting estates under section 290a of this act or one to trustees for alienation. In such cases the estate does not pass to the right heirs of a sole survivor, but as prescribed by statute. Definition of " Limitation of an Estate." By a limitation of an estate is here meant the sentence which serves (in an instrument of con- veyance recognized by the State) to create and mark out an estate in lands.^^ It is believed accurate to classify all possible valid limita- tions of fee simple estates, now tolerated in New York, about as follows: (i) Qualified limitations; (2) determinable limitations; (3) limitations on or subject to a defeasance or condition; (4) simple or direct limitations. The last class may serve to refer to those limitations which pass a fee simple absolute^ (by which is meant the normal and largest estate of inheritance known in our law), or any lesser estate, which is unrestricted by anything tending to abridge its longest possible duration. Simple or direct limitations require no further discussion; they denote our common form of deeds. Qualified limitations create a different course of descents 29 Chap. 2, Laws of 1782 ; chap. 12, Hadley v. Kuhn, 97 N. Y. at p. 35 ; Laws of 1786; I J. & V. 245. Stilwell v. Melrose, 15 Hun, 378; 30 See I Preston, Estates, 449, as to et infra, pp. 159, 161, 163. whether a qualified fee is not an en- ^^ cf. Smith's " Executory Inter- tail in certain cases. ests," §§ 24, 26. 31 § 21, supra; I R. S. 722, § 2. ^4 Supra, § 21 ; i R. S. 722, § 2. 32 Grout V. Townsend, 2 Den. 337 ; Determinable Limitations. 159 from the normal, such as a fee to trustees o'f an express trust, since the Revised Statutes. All other limitations of fees, excepting direct limitations, create base fees,^^ or to put it in aTiother way : Base fees may arise here in two modes only : (i ) By determinable limitations and (2) by limitations of fees on or subject to a defeasance or condition. Determinable Limitation of a Fee. A determinable limitation of a " fee " is one expressed to be made to the grantee and his heirs until the happening of some future event which must be of such a kind that it may by possibility never happen at all;^® for it is an essential characteristic of all fees that they may by possibility en- dure forever.*^ " The language by which the future event is ex- pressed in such a limitation may take either of the two following shapes : (i ) Until a specified contingency shall happen, which may by possibility never happen; or (2) so long as an existing state of things shall endure, which is such that it may by possibility endure forever." ^* In a determinable limitation, the doing by the grantee of the act, or the happening of the event which is to determine the estate, is made a part of the limitation itself; and the doing of the act or the happening of the event will ipso facto determine the estate without any entry or claim on the part of the person entitled to the possibility of reverter.^' Determinable limitations are partly limi- tations good by the common law,*" but they are more frequently met with after the Statutes of Uses and Wills and then they operate by way of use or devise.*^ Under the Revised Statutes of New York a determinable limitation of a fee simple inheritance may be contained in a deed or " grant " or in a will. Determinable Limitation of Lesser Estate. A determinable limitation of an estate less than a fee may also be contained in any instrument operating as a conveyance or devise thereof.*^ 35 Base in contrast with a pure or 38 Challis, 198. unqualified fee {supra, p. 157) ; Mat- 39 Challis, 206 ; Plowden, 242 ; cf. i ter of Moore, 152 N. Y. 602, 609. Sanders, Uses & Trusts, 156 ; Miller 38 If the event must happen the es- v. Levi, 44 N. Y. 489 ; 2 Prest. Conv. tate is necessarily not a fee, but an 167; cf. Matter of Clark, 38 Misc. estate for life, for years, or at will; Rep. 617. I Saunders, Uses & Trusts, ISS- ^ Infra, p. 162. 3'' Challis, 197 ; i Prest. Est. 479 ; *i Challis, 200. Van Home v. Campbell, 100 N. Y. at *2 Co. Litt. 42a ; Strahan, Property, pp. 292, 293. SI. 160 Rules Touching Limitations. Determinable Estates. A determinable fee, or estate, continues al- ways subject to be put an end to on the happening of the event described in the detdtminable limitation, in whatever hands such fee or estate may come by purchase or descent.*^ At common law no remainder or reversion could subsist on a determinable fee.** There is some question whether a fee simple determinable on an ar- bitrary event subsists as a common-law fee.*® But the weight of authority is in favor of the classification.*^ Former Rules Touching Limitations of Fees. At common law a fee could not be mounted on a fee; but it is said that it might have been mounted upon a determinable fee.*^ At a later day, when executory limitations became common, under the Statutes of Uses and Wills, and estates might be limited to take effect by way of use or devise, an executory limitation,** upon an event happening to terminate an estate in fee, was permitted; but the contingent fee must vest within the time prescribed by the rule against perpetui- ties.*^ While a fee, limited by either a determinable limitation or on a condition, is now indifferently termed a base fee to distin- guish it from a pure fee or fee simple, yet the rules touching these several limitations are not the same even under the Revised Statutes. Collateral, Conditional, and Contingent Limitations. A. determinable limitation, sometimes called by Preston a " collateral limitation," is not confined to the limitation of fees. Any estate, an estate for life or years, may be made liable to determine in like manner; but in the case of a determinable limitation of a fee, the future event must be of such a kind that it may possibly never happen, or else it is in- compatible. These limitations are sometimes styled limitations on a contingency^^ at others conditional limitations,^^ and sometimes con- 43 4 Kent Comm. 9 ; Challis, 207 ; reporter to say this. But as I pointed Van Home v. Campbell, 100 N. Y. at out in a paper on Perpetuities, Lord p. 293. Hardwicke said this on various occa- ** Challis, 44, 64 ; sed cf. 1 Har- sions. 59 Alb. Law Journ. 359. grave's Collect. Jurid. 383 ; Law Quar. *» " Conditional limitation " of i Rev. VI, 22. R. S. 72s, § 27. *5 Pollock. The Land Law, 213- 49 Challis, 200 ; Leonard v. Burr, 18 215. N. Y. 96. ^^ Supra, p. 157. soshep. Touch. 117. *'^ Case of Bagshaw in i Hargrave's ^1 Smith, Executory Interests, § 148 ; Collect. Jurid. 383. Prof. Gray, of Challis, 199. But this term, condi- Harvard, thought it an error of the tional Ihnitation, is used in many Determinable Limitations. 161 ditions in law}^ The distinction between determinable or condi- tional limitations and limitations on, or subject to, a condition, is that the estate limited ceases in the one case without claim or entry, and, in the other, continues until entry by the person entitled to take the benefit of the breach of condition.''^ The term " conditional limitation " is employed by some writers and judges as the equivalent of a determinable limitation, even when no estate is limited over after the event determining the first fee.^* But, in the State of New York, such, a usage is at variance with the revisers' notion, which would confine the term " conditional limitation " to a limita- tion over of an estate operating to abridge or determine a precedent estate.®^ The use of the term " conditional limitation " was formerly confined to executory limitations contained in deeds,^^ but the revis- ers do not restrict its use to deeds, but make it the equivalent of an " executory devise," and, indeed, there is now no need for a distinc- tion, as the construction of limitations of estates in deeds or in wills is the same. Determinable Limitation of a Fee. There are few reported cases thus far met with in the New York courts involving an unqualified deter- minable limitation of a fee.^^ In Leonard v. Burr,^* a devise " to the use of A. until Gloversville shall be incorporated as a village," was held not to give "A." a fee even since the Revised Statutes.^^ But the case is not very satisfactory in its reasoning, it being apparently both admitted and denied that a determinable fee determines only on senses. Challis, 199; Towle v. Rem- sen, 70 N. Y. at p. 312; cf. Cornish, sen, 70 N. Y. at p. 312; i R. S. 725, Uses, 94; Fearne, Conting. Rem. 13. § 27. 86 Mr. Butler's note to Fearne, Con- 52 Litt., § 380 ; Plowden, 242 ; or ting. Rem. 382, 385. deed, 2 Black. Comm. 155. ^^ A determinable fee being good at 53 Shep. Touch. 117; Challis, 206; common law, seems to be good now. Plowden, 242; Strahan, Property, Cf. Chapl. Susp. Power of Alienation, 186; cf. Towle V. Remsen, 70 N. Y. § 131; Dodge v. Stevens, 94 N. Y. at p. 312; Bacon's Abr. Cowrfifjow, H; 209; Stilwell v. Melrose, 15 Hun, Beach v. Nixon, 9 N. Y. at p. 37; i 378; Van Home v. Campbell, 100 Sanders, Uses & Trusts, 135; Miller N. Y. at p. 299; Matter of Clark, 38 V. Levi, 44 N. Y. 489. Misc. Rep. 617. 5* Gray, Restraints on Alienation, 68 jg N. Y. 196. § 22 ; note to 13 Abb. N. C. 82 ; Leon- 59 i r. s. 748, § i, abolishing the ne- ard V. Burr, 18 N. Y. at p. 199 ; Miller cessity of word " heirs " to carry a V. Levi, 44 id. 489; cf. Challis, igg. fee. 55 I R. S. 725, § 27 ; Towle v. Rem- II 162 Common-law Fees. the happening of the event specified in the limitation.^ But upon the construction adopted the case affords an example of a deter- minable limitation of an estate for life, as the curtailing event was one which might, by possibility, never happen at all during the life of "A." ^1 It is to be noticed in this case that the court's observa- tions on the duration of a determinable fee are obiter dicta, as A.'s interest was adjudged not to be a fee ; and so were its observations on the effect of void executory limitations in enlarging all determinable fees into fees simple.^^ A fee simple, subject to an executory limita- tion, proving void, of course remains a fee simple ; and so a fee deter- minable upon the happening of some event, other than the vesting of an executory interest, is not enlarged into a fee simple by reason of the invalidity of the next contingent estate, because of remoteness. In other words, if A.'s interest had been held to be a fee, in the case of Leonard v. Burr, it undoubtedly terminated when Gloversville became a village,®^ and was not enlarged into a fee simple because the " future estate " of Gloversville proved too remote. A distinc- tion, therefore, is to be made between a fee made determinable by the vesting of an executory limitation, and one made determinable, irrespective of such executory limitation. The distinction denoted was not observed in all the observations made in the case now under consideration. Had "A.'s " interest been held to be a fee deter- minable, it would have terminated when Gloversville became a vil- lage, and the possibility of reverter would have then taken effect or have been vested in interest. A.'s determinable fee could not be enlarged into a fee simple by reason of the invalidity for remoteness of a devise over, such as one to the village of Gloversville in this case, without a release of the possibility of reverter.®* Common-law Fees. A fee determinable is often classed as a com- mon-law fee, and is contrasted with the other common-law fees, a fee simple, a conditional fee, and a qualified fee simple.^' There would seem to be no principle of existing law violated by a determinable 69 i8 N. Y. pp. 99, 100. limitation, subject to such a fee, is 61 i8 N. Y. p. 104; Bramhall v. Fer- too remote. ris, 14 id. 41. 63 18 N. Y. p. 106 ; Challis, 206. 62 18 N. Y. p. ic6. Mr. Fearne's ob- 64 Challis, 200. servations, and those of Mr. Lewis, 65 Challis, 43 ; Preston's Shep. quoted in the opinion, do not main- Touch. 203 ; Whart. Conv. 38 ; Hat- tain that a " determinable fee " is en- field v. Sneden, 54 N. Y. 280; cf. PoK larged by the fact that an executory lock. The Land Law, 213-215. Possibility of Reverter. 163 limitation of a fee simple, e. g., " as long as Trinity Church shall stand." ^ But as the cases in New York State have not expressly- sanctioned a very remote determinable limitation, when it occurs it will no doubt be open to the suggestion that any distant interruption of the course of descents of a fee simple is now repugnant to the nature of the estate, even though a determinable fee is good at com- mon law and its creation violates no statute of the State.^^ In Eng- land it has been held, in 1899, that a condition subsequent cannot be annexed to a fee simple unless limited in point of time to comply with their rule against perpetuities.*^ Whether this decision would afifect limitations of fees determinable should be considered. Prob- ably it would not. Classes of Determinable Limitations of a Fee. There are two classes of determinable limitations of a fee: (i) Where a fee is expressed to endure until some event shall happen, which event is entirely inde- pendent of any default of the tenant of the fee, e. g., " as long as Trinity Church in this city shall stand." ** (2) Where the fee is to endure so long as an existing state of things shall endure which is such that it may always endure.™ Possibility of Reverter. A possibility of reverter subsists on a " de- terminable fee," and also upon every limitation of a fee, subject to a pure condition subsequent : Thus where the fee is granted subject to a condition subsequent,''^ e. g., " on condition that grantee shall, within a reasonable time, erect a church building on the premises hereby granted." '^ This possibility is sometimes called " a bare possibility." At common law such a possibility was descendible but not devisable, or assignable.''* A possibility of reverter is not 86 Chapl. Susp. Alien., § 131; Wil- 68 Strahan, Law of Property, 34; liamson v. Field, 2 Sandf. Ch. 533, In re Trustees of Hollis Hospital & 552; Stilwell V. Melrose, 15 Huti, Hague's Contract, 2 Ch. 540. 378; Bramhall v. Ferris, 14 N. Y. 41; eschallis, 201; 1 Preston, Estates, Dodge V. Stevens, 94 id. 209; Grout 431, 433, 479; cf. 1 Sanders, Uses & V. Townsend, 2 Den. 336; cf. Pollock, Trusts, 208, 209. The Land Law, 213^15. 70 challis, 206; Willard, Real Prop. 87 Cf. note I to § 22, Gray, Rest. ; 54 ; Plowden, 242. I Gilbert, Uses, 209; Lewis, Perp. 7i Challis, 63; Upington v. Corri- 60; Bramhall v. Ferris, 14 N. Y. at p. gan, 151 N. Y. 143. 44; note the" word condition in § 15 ^2 Upington v. Corrigan, 151 N. Y. (i R. S. 723) defining a perpetuity; cf. 143. Pollock, The Land Law, Appendix, ''* Challis, 58, 60 ; cf. Judge Hare's pp. 213-215. note to Durnpor's Case, i Smith 164 Descent of Possibilities. an estate in lands under the Revised Statutes, and, until the contin- gency happen, the whole title is in the grantee J* A fee subject to a condition subsequent does not contravene the rule against per- petuities, for the possibility of reverter in no wise suspends the power of alienating the feeJ^ The possibility is a vested interest,''^ susceptibk of being released, or of being merged in the inheritance v/hen the possibility and the legal title come into, the same hands. The power of alienation is, therefore, not suspended by a condition subsequent.'''^ The possibility of reverter was not assignable or de- visable at common law,''^ but it is said to be assignable now,''^ -though not devisable under our Statute of Wills in New York.*° Descent of Possibilities. The rule regulating descent of a possibility of reverter at the present time is considered under a subsequent section of The Real Property Law.*^ Determinable Limitation and Limitation Subject to Condition. There may be now, at this day, an important distinction between an estate of freehold created by a determinable limitation, and one created by a limitation on or subject to a condition.*^ In the first case dower and curtesy may not cease when the event happens determining the fee;^^ but an estate determined by a condition and entry of the grantor relates back to, and restores the original estate, and dower Lead. Cas. ; i Sanders, Uses & Trusts, the Church in Brattle Square v. 208, 209; Upington v. Corrigan, 151 Grant, 3 Gray (Mass.) 142; i Shars- N. Y. 143; Stilwell V. Melrose, 15 wood & Budd, Lead. Cas. Real Prop. Hun, 378; Strahan, Law of Property 132, 189. (3d ed.), p. 31. '^^Challis, 152, 153; cf. Gray, Re- ■?* Nicoll V. N. Y. & Erie Ry. Co., straints on Alienation, note on p. 30, 12 N. Y. 121, 133; Vail V. L. I. R. R. and i Sanders, Uses & Trusts, 206. Co., 106 id. 283 ; United States v. '^^ Preston, Shep. Touch. 120 ; Chal- Loughrey, 172 U. S. 206; cf. Van lis, 153. 1 Rensselaer v. Read, 26 N. Y. SS8, 563, ™ Nicoll v. N. Y. & Erie R. R. Co.)l as to possibility of reverter on limi- 12 N. Y. 121 ; Towle v. Remsen, 70 id.V tation of a fee reserving a perpetual at p. 312; Upington v. Corrigan, 1511 rent ; Butler's note " a," Fearne, Con- id. at p. 152 ; sed. cf. § 1910, Code Civ. ting. Rem. 382. Proc. ■75 I Sharswood & Budd Lead. Cas. 8" Upington v. Corrigan, 151 N. Y. Real Prop. 132, 189; cf. Strahan, Law 143. of Property, 34; In re Trustees of *i § 49, infra. Hollis Hospital & Hague's Contract, 2 *2 Challis, 206. Ch. 540. 83 4 Kent Comm. 32 ; sed. cf. Plowd. T64 Kent Comm. 9; Proprietors of 557. Conditions. 165 and curtesy fall.®* At common law it is said that no remainder or reversion could subsist upon a fee determinable by express limitation, although Lord Hardwicke thought otherwise.®^ Conditions. It was intimated above that a base or impure fee or estate may be created in this State by a limitation of a fee simple on, or subject to, a condition.®^ Conditions are either express or im- plied. Conditions which are annexed to, or are in defeasance of, a fee simple, are subject to the rules of the common law adopted in this State. Express conditions may be contained in any instrument operative to create an estate or interest in lands f or in a separate defeasance executed at the same time.®® A condition is never a " limitation " in the narrowest sense of that term, for it does not create an estate, but either defeats its creation or avoids it when created.®^ Express conditions were anciently classified as precedent and subsequent by English writers.^ Conditions precedent are ordi- narily annexed to those donations or leases which never take efifect as estates, but they may be contained in any deed. Such conditions defeat the vesting of estates.®^ On the other hand, conditions sub- sequent operate to avoid estates already vested and existing.*^ The distinction between the two kinds of conditions is not, however, al- ways clear.^^ The classification of the Civilians is much more logi- cal. They term a condition suspensive when the commencement of the operation of an act is made to depend on its occurrence, and reso- lutory when the termination of the operation of the act is made to depend upon its occurrence.** No precise words are essential in a deed to make a condition, nor is the situation of the clauses of a sen- 8* Cornish, Uses, 93. "2 shep. Touch. 117; Towle v. Rem- ^ Supra, p. 160. sen, 70 N. Y. at p. 309 ; Upington v. 88 C/. Radley V. Kuhn, 97 N. Y. 26, Corrigan, 151 id. 143; Birdsall v. 34, 35; Stilwell V. Melrose, 15 Hun, Grant, 27 App. Div. 348; Associate 378, 380. Alumni v. General Seminary, 26 id. 8^ Shep. Touch. 11; Preston's ed. ; 144 ; Matter of Hart, 61 id. 587 ; Trus- Matter of Traver, 161 N. Y. 54, 58. tees of Union College v. City of N. Y., 88Willard, Real Estate, 440. 65 id. 553. 89Shep. Touch. 117. 93 NicoU v. N. Y. & Erie Railway, 90 Bacon's Abr. Condition (i) ; 12 N. Y. 130; Bennett v. Culver, 97 Cruise Dig.; Shep. Touch. "Condi- id. 250; Newkirk v. Newkirk, 2 Cai. tion." 34S, 352. 91 Goodeve, Real Prop. 189 ; cf. Mat- 94 2 Puchta, Inst. 365. ter of Haight, 51 App. Div. 310, 316; Wright V. Mayer, 47 id. 604, 606. 166 Conditions. tence conclusive in determining whether the condition is precedent or subsequent. The intention of the parties is to be ascertained from the whole instrument, and, when found, that will determine the nature of the condition.^^ Fee-farm Grants. It is doubtful under the decisions in this State whether the old fee-farm grants in perpetuity reserving a right of entry for nonpayment of the perpetual rent are to be regarded from the point of view of estates in fee upon condition subsequent, or as estates upon condition. The expressed opinion is that no rever- sion, or possibility of reverter, subsists on such a grant.®® Estates on Condition. Estates in possession held upon some condi- tion were formerly of more importance than at present, when a mort- gage has ceased to confer an estate on condition and is become in the hands of the mortgagee a mere collateral security. But as com- mon-law conditions are frequently annexed to estates, it is conven- ient to preserve the classification to denote estates held upon some condition expressed in a deed or will or implied by the law. A con- dition has been defined for legal purposes to be " a qualification or restriction annexed to a conveyance of lands, whereby it is provided that, in case a particular event does or does not happen, or in case the grantor or grantee does, or omits to do, a particular act, an estate shall commence, be enlarged, or defeated." *'^ The Revised Statutes by implication recognized the validity of estates granted or held on some condition, valid by the common law.** All the estates which we have considered, whether in fee, for life, or for years,*® may be modified by some condition, either implied, or ex- pressed in the grant. Conditions are either implied, or express. An implied condition, sometimes termed " a condition in law," is one which is created by the common, or the statute, law without any express words in the grant or will.^ 95 Per Paige, J., in Parmalee v. 9^ Goodeve, Real Prop. i88 ; Co. Oswego, etc., R. R. Co., 6 N. Y. at p. Litt. 20ia; Cruise Dig. tit. 13, chap, i, 80; Towle V. Remsen, 70 id. at p. § i. 311; Post V. Weil, IIS id. 361. "^ i R. S. 722, § 2, now § 21, The 86 Van Rensselaer v. Ball, 19 N. Y. Real Prop. Law. at p. 104 ; Van Rensselaer v. Read, 26 ^ Supra, under § 20. id. at p. 563; Cagger v. Lansing, 64 id. 1 Litt., §§ 325, 378; 2 Black. Coram. 417, 429; DeLancey v. Piepgras, 138 152; 4 Kent Comm. 122. id. 26 — Observe that the last was a crown grant; a different proposition. Conditions. 167 In the feudal law tenants were presumed to take their estate upon an implied condition that they would not pretend to a larger estate than that granted, or do any other act to injure the lord of the fief.^ As the common law developed, statute modified the rigor of the feudal law and the common law relating to conditions and the rights of reversioners became systematic. If tenant for life or years granted a larger estate than he had, it was a breach of an implied condition and forfeited his estate to the reversioner.* The Revised Statutes abolished this rule,* and now a conveyance by tenant for life or years is operative to pass his interests, and does not work a for- feiture of his estate.^ Implied Conditions. Implied conditions are such as are inferred from the situation of the parties to a conveyance. When the con- veyance by tenant for life or years, of a greater estate than he him- self had, worked a forfeiture of his estate,® there was a condition implied and annexed to any assurance of his original estate, to the effect that he would not work a forfeiture thereof by any such con- veyance. This class of conditions has lost much of its former im- portance by reason of the acts taking away the forfeitures and turn- ing such conveyances of the tenant into estoppels and assignments of their present or actual interests.^ The only implied conditions, or conditions in law, which remain of importance in modern law, are those annexed to estates and franchises held by corporations under the right of eminent domain, or to estates for life or years, that tenant for life or years shall not commit waste or devastate the inheritance. There is an implied condition that a corporation shall use its fran- chise® or an estate taken by the power of eminent domain for a particular use,' and if it do not, a forfeiture of the franchise^" or the estate may result.^-^ So an estate of tenant for life or years may 2 Glanv. lib. 9, chap. I. N. Y. 242, 257 ; Moore v. Littel, 41 id. 3 2 Black. Comm. 153, 274 ; Co. Litt. 66, 78. 233b. * Angell & Ames, Corp. 742, chap. 4i R. S. 739, §§ 143, I4S- XXII; Willard, Real Prop. loi. 5 § 212, The Real Prop. Law; Chris- 9 Heard v. City of Brooklyn, 60 tie V. Gage, 71 N. Y. 189, 193. N. Y. 242; Whitney v. State of New 6 I J. & V. 98, loi ; I K. & R. 525 ; I York, 96 id. 240. R. L. 181. 10 Willard, Real Prop. loi. 7 I R. S. 739, § 14s ; § 212, The Real " Prospect Park & Coney I. R. R. Prop. Law; Sparrow v. Kingman, i Co. v. Williamson, 91 N. Y. 552; cf. 168 Conditions. be forfeited by waste, as it is an implied condition that they shall not devastate the inheritance.^^ Express Conditions. Express conditions or conditions in deed are those declared in some instrument creating the estate ;^^ or in some separate instrument called a " defeasance." ^* A condition in deed was formerly general when forfeiture resulted from the breach, or special when a breach gave a mere right of entry and temporary user or distress.^^ But now conditions in deed are discussed under two heads : " precedent " and " subsequent." ^'^ A condition prece- dent is one to happen before the estate begins. It defeats the vesting of the estate.^'' A condition subsequent, on the other hand, operates to avoid estates already vested and existing.^* Construction of Conditions. Whether a condition is " precedent " or " subsequent " is not always easy of solution.^^ It is then a matter of construction depending on the intent of the grantor.^ This in- tention is to be ascertained from the whole instrument and when found will determine the nature of the condition.^^ Conditions sub- Heath V. Barmore, 50 id. 302; Bird- sail V. Gary, 66 How. Pr. 358; City of Brooklyn v. Copeland, 106 N. Y. 496. 12 § 165s, Code Civ. Proc. 134 Kent Comm. 123; 2 Black. Comm. 154; cf. Radley v. Kuhn, 97 N. Y. 26, 34, 35 ; Stilwell v. Melrose, IS Hun, 370, 380. i*As to what is a defeasance see Ex parte Popplewell, 21 Ch. D. at p. 81 ; Willard, Real Prop. 440 ; cf. Shep. Touch. 396. i^Litt. §§ 32s, 327; Co. Litt. 203a. 16 Bacon Abr. tit. " Conditions ;" Cruise, tit. 13, chap, i, § 6; Shep. Touch. " Conditions," 117, and all later writers on common-law " Condi- tions.'' 1^ Towle v. Remsen, 70 N. Y. 303, 309; Shep. Touch. 117; Goodeve, Real Prop. 189; cf. Matter of Haight, $1 App. Div. 310, 316. 18 Shep. Touch. 117; Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y. at p. 130; Towle V. Remsen, 70 id. at p. 309; Upington V. Corrigan, 151 id. 143; Associate Alumni v. General Semi- nary, 26 App. Div. 144; Birdsall v. Grant, 37 id. 348; Matter of Hart, 61 id. 587; Trustees of Union Col- lege v. City of New York, 65 id. 553; 173 N. Y. 38; Wright v. Mayer, 47 App. Div. 604, 606. 19 Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y. at p. 130; Bennett v. Culver, 97 id. 250; Newkirk v. Newkirk, 2 Cai. 345, 352. 204 Kent. Comm. 124; Finlay v. King, 3 Pet. 346; Trustees of Union College V. City of New York, 173 N. Y. 38. 21 Per Paige, J., Parmalee v. Os- wego, etc., R. R. Co., 6 N. Y. at p. 80; Towle V. Remsen, 70 id. at p. 311 ; Post V. Weil, 115 id. 361; Baker v. Woman's Chris. Temp. Union, 57 App. Div. 290, 294; Whittemore v. Wood- lawn Cemetery, 71 id. 257. Conditions. 169 sequent, as they tend to defeat estates, are strictly construed,^^ and the tendency is to favor a construction which makes conditions cove- nants, as the latter do not destroy estates.^ Conditions subsequent are not raised by implication ordinarily, and statements as to user will sometimes be construed as matter of description and disre- garded.^ So forfeitures occasioned by breach of conditions are deemed easily waived by those in whose favor they are.^* Thus if there be a condition in a demise or lease, that tenant will not alien without the consent of lessor, a single license to tenant to alien discharges the condition forever.^^ So the acceptance of rent after knowledge of the breach of condition.^^ Equity will also relieve unavoidable breaches of conditions subsequent;^ but it never enforces them.^* Mixed Conditions. In addition to conditions precedent and subse- quent we find in modern law a third class called " mixed conditions," i. e., one which is precedent as to one interest and subsequent as to another. An example of this class of conditions is that called in England " cesser and acceleration." ^^ What Conditions Invalid. Common-law conditions may be void in their inception, because (i) impossible ;^i (2) contrary to positive rules of law, or public policy ;^^ (3) repugnant to the nature of the estate granted.^^ If the condition is illegal, or impossible, it is void 22 Jackson ex dem., etc. v. Harri- Woman's Christian Temp. Union, 57 son, 17 Johns. 66; NicoU v. N. Y. & id. 290. Erie R. R. Co., 12 N. Y. at p. 131; 264 Rep. 119b; Dakin v. Williams, Woodworth v. Paine, 74 id. 196; 17 Wend. 447, 457; aflfd., 22 id. 200. Graves v. Deterling, 120 id. 447 ; 27 Conger v. Duryee, 90 N. Y. 594. Board of Education v. Reilly, 71 App. 282 Story Eq. Jurisp., § 1319 seq.; Div. 468. De Veaux College v. Highlands Land 23 Graves v. Deterling, 120 N. Y. Co., 63 App. Div. 461, 467. 447 ; Cunningham v. Parker, 146 id. 29 § 381^ Pomeroy Eq. Jurisp., and 29; Jones V. Nichols, 42 App. Div. cases there cited. 515, 519; Town of Huntington v. ^o strahan. Property, 183. Titus, 50 id. 468; Post v. Weil, 115 sigacgn Abr. Conditions, M. N. Y. 361, 366. 32 Bacon Abr. K; Matter of Haight,. 2* Board of Education v. Reilly, 71 51 App. Div. 310, 313; Wright v. App. Div. 468. Mayer, 47 id. 604, 606. 25 Wheeler v. Dunning, 33 Hun, 33 g Rgp. 41a ; Bacon Abr. Condi- 20s; note to Dumpor's Case, i Smith, tions, L; De Peyster v. Michael, 6 Lead. Cas. ; Town of Huntington v. N. Y. 467; Overbagh v. Patrie, id. Titus, so App. Div. 468; Baker v. 510; Plumb v. Taylor, 41 id. at p. 446; Bramhall v. Ferris, 14 id. 41, 44. 170 Conditions. and the estate granted becomes absolute;^* if an estate of freehold, after entry, and if an estate for years, without entry.^^ At least, such was the distinction at common law between estates of freehold and estates for years on condition before the law relating to entries was modified. Effect of Impossible Condition. If a condition subsequent is rendered impossible by act of the grantor,^^ or by act of the law,^^ or by act of God,^* the estate granted is discharged from it. Remedy for Breach of Condition or Condition Subsequent. Ordinarily the remedy for breach of a condition, or condition subsequent, is ejectment.^® But if the condition is one annexed to a charitable devise it may be to enforce the trust.*'* The original resemblance between a trust and a condition has been alluded to elsewhere.*^ Time Limit on Conditions. A condition subsequent must be per- formed within " a reasonable time " or forfeiture ensues and dam- ages from entry or action to date of trial.*^ The present rule against perpetuities*^ is thought not to apply to limitations on conditions subsequent.** As a condition subsequent may always be released it has been said not to suspend the power of alienation.*^ There is a great diflference in this respect between conditions precedent and conditions subsequent. The former prevent vesting, suspend aliena- tion, and are within the Rule against Perpetuities.*® The latter do 3* Bacon Abr. Conditions, N. *1 P. 12. 35 Co. Litt. 214b; Shep. Touch. 151; *2 trustees of Union College v. Cruise Dig., tit. 13, chap. 11, §§ 39, City of New York, 65 App. Div. 553; 45 ; Goodeve, Real Prop. 192. Baker v. Woman's Christian Temp. 36 Whitney v. Spencer, 4 Cow. 39. Union, 57 id. 290. 37 People V. Manning, 8 Cow. 297 ; *3 § 32, The Real Prop. Law ; sed. Wolfe V. Howes, 20 N. Y. 197, 201. cf. Strahan, Law of Property, 34. 3S People V. Manning, 8 Cow. 297 ; ** i Sharsw. & Budd, Lead. Cas. Wolfe V. Howes, 20 N. Y. 197, 201. Real Prop. 132, 189; Challis, Real 39 §§ 1504, 1505, Code Civ. Proc; Prop. 152, 156; Gray, Restraints on Van Rensselaer v. Slingerland, 26 Alienation (2d ed.), 30, note; Matter N. Y. 580, 585; Martin v. Rector, 118 of Hart, 61 App. Div. 587, 593; cf. id. 476; Upington v. Corrigan, 151 id. 1 Saunders, Uses & Trusts, 207, 213; 143; cf. Towle V. Remsen, 70 id. 303; Oxley v. Lane, 35 N. Y. 340, 347. Cagger v. Lansing, 64 id. 417, 430. « i Sharsw. & Budd, Lead. Cas. *" Associate Alumni v. Theological Real Prop. 132 ; Challis, 152, 207 ; cf. Seminary, 163 N. Y. 417, 422; cf. Oxley v. Lane, 35 N. Y. 340, 347. Stanley v. Colt, S Wall. 119; Med. *8 challis, 157; Rose v. Rose, 4 College Lab. v. N. Y. University, 76 Abb. Ct. App. Dec. 108; Cruikshank App. Div. 48. V. Home for the Friendless, 113 N. Y. Conditions. 171 not prevent vesting and are thought to be without the Rule.*''^ Cove- nants in the nature of equitable conditions running with the land in equity** sometimes wear out with lapse of time, and will not then be enforced.*® Who May Enforce Conditions Subsequent. At common law a condition could be taken advantage of only by the person creating it and his heirs as to estates, descendible to them.^** So at present in this State, conditions subsequent in grants in fee may be reserved only for the benefit of the grantor and his heirs as to estates descendible to them, and no others may have the benefit of such conditions.^^ Possibilities of reverter on grants in fee reserving rent are now assignable by statute ; but this is an exception to the rule.^^ Conditions subse- quent are not devisable,®^ and the presumption is that they remain unassignable even since the passage of section 1610, Code of Civil Procedure,^* although the point is not perhaps determined at this writing.*^ Conditions Subsequent in Demise. At the present day conditions con- tained in leases for years or lives may be assigned or enforced by the person entitled, subject to the term, to the income of the land.^^ The statutes in England giving the assignees of reversioners all the remedies of their assignors were early re-enacted in this State, and have since continued on our statute books.°^ 337; Bigelow v. Tilden, i8 Misc. Rep. 574, 581; Challis, Real Prop. 153, 168; 689. Preston's Shep. Touch. 120; Upington *''' Shannon v. Pentz, I App. Div. v. Corrigan, 151 N. Y. 143. And see 331, 335; Matter of Hart, 61 id. 587, Notes on § 49, The Real Property 593 ; sed cf. Strahan, Law of Prop- Law, infra. erty, 34. 52 Nicoll v. N. Y. & Erie R. R. Co., *8 Vide infra, " Covenants running 12 N. Y. at p. 131 ; cf. § 1910, Code with the land." Civ. Proc. *9 Gibert v. Peteler, 38 N. Y. 165 ; 63 Upington v. Corrigan, 151 N. Y. Trustees of Columbia College v. 143. Thacher, 87 id. 311; Crocker v. Man- 54 Upington v. Corrigan, 151 N. Y. hattan Ins. Co., 61 App. Div. 226, 233. 143. 50 Challis, 71, 168 ; Co. Litt. 214b. 55 it was obiter in the case last 51 Nicoll v. N. Y. & Erie R. R. Co., cited. 12 N. Y. at p. 131; Jackson v. Top- 5632 Hen. VHI, chap. 34, now § 193, ping, I Wend. 388; Towle v. Rem- The Real Prop. Law; 8 Anne, chap. sen, 70 N. Y. at p. 312; Hoyt v. Dil- 14, § 4, now § 191, The Real Prop. Ion, 19 Barb. 644, 651 ; Countryman v. Law. Deck, 13 Abb. N. C. 112; Archbold 57 See author's Notes to §§ 191 and V. N. Y. C. & H. R. R. Co., 157 N. Y. 193, The Real Prop. Law. 172 Rents Reserved on Estates in Fee. What Instruments May Contain Conditions. Common-law conditions may be contained in any instrument of conveyance,^^ or if annexed to estates of freehold, in a defeasance or instrument executed at the same time with the conveyance f^ but in some cases, by consent, the condition may be contained in an instrument executed subsequently to the conveyance.^" Determinable Fees Enlarged into Fees Simple Absolute. In order to en- large a fee determinable by a condition into a fee simple absolute, courts will sometimes construe a condition subsequent, a breach of which forfeits the whole estate, into a covenant on which only the actual damage can be recovered.^^ Covenants to pay rent on a grant in fee in New York run with the land, and will be binding upon the heirs and assigns of the covenantor successively as to all breaches of such covenants which occur during their respective ownership of the lands.*^ The distinction between a condition and a covenant is not always clear, and wherever this is the case the condition will be construed as a covenant,®* even if it have the effect of conferring a remedy on a successive owner not entitled to enforce a breach of a condition subsequent.®* Rents Reserved on Estates in Fee. As rents may be reserved on es- tates in fee, and as certain perpetual rents may be limited in fee simple, and there is no reason why they should not be, questions of importance touching them may arise in the future as they have arisen in the past. It being difficult to find the law on this subject systematically arranged, it is now attempted to be stated at some length, for the convenience of those interested in this obscure sub- ject. 68 Challis, i68; Cruise Dig. tit. 13, Graves v. Deterling, 120 N. Y. 447; chap. I, § 9; Jackson v. Topping, i 456. Wend. 388 ; Spalding v. Hallenbeck, ^2 Van Rensselaer v. Read, 26 N. Y. 30 Barb. 292. SS8, 564. 59 Shep. Touch. 126 ; Cruise Dig. tit. 63 Note to Spencer's Case, i Smith, 13, chap. I, § 10. Lead. Cas. ; note, 13 Abb. N. C. 114; 6* As to when it may be subsequent Avery v. N. Y. Cent. R. R., 106 N. Y. to the conveyance see Shep. Touch, p. 155; Countryman v. Deck, 13 Abb. 126, 396. And see Butler's note 151; N. C. no; Graves v. Deterling, 120 Co. Litt. 236b; Kraeraer v. Adels- N. Y. 407; Cunningham v. Parker, berger, 122 N. Y. 467. 146 id. 29; Jones v. Nichols, 42 App. 61 Avery v. N. Y. Cent. & H. R. R. Div. 515, 519. R. Co., 106 N. Y. 142, 155 ; Country- 64 Avery v. N. Y. Cent. & H. R. man v. Deck, 13 Abb. N. C. no; R. R. Co., 120 N. Y. 142, 155; cf. Perpetual Rents. 173 Fee-farm Rents and Fees-farm. Fee farm, or perpetual, rents, are themselves hereditaments, descendible and devisable.®^ In one aspect an estate of inheritance in land held subject to a perpetual rent, re- served in favor of the grantor, is now regarded as an estate on con- dition, or as one limited upon a condition subsequent.^^ A perpetual rent reserved on an estate of inheritance or in fee is in manors, or seigniories, termed a " quit rent," or a fee farm rent, and the estate of inheritance in the land itself is a " fee farm." "'^ It is highly prob- able that fee farms originally indicated a " feud " or fief of inherit- ance subject to a rent, and held by the free socage tenure.^ Classi- fications of estates were for a long time in English law wholly in- complete or inconsistent. Scientific classification comes very late to any system. Some persons have thought the quantum of the rent determined a fee farm. It is now conceded that the quantum of the rent does not make a " fee farm " rent, as stated by some writers.^® It is the reservation of a rent, or " farm," ™ on an estate in fee which constitutes a fee farm.^^ Perpetual Rents in New York. Perpetual or " fee farm " rents''^ were very common in early times in New York, and by the law of this State their reservation is still lawful on grants in fee, except in so far as the constitutional provision restraining leases of agricul- tural lands prohibits them.'^^ In England no subject could reserve a Gibert v. Peteler, 38 Id. 165, 168; work, the writer of these lines had, Trustees, etc. v. Lynch, 70 id. 440, unaided, crudely struggled to a like 451, 452. conclusion. Hist. Real Prop, in N. Y. 65 Van Rensselaer v. Hays, 19 N. Y. 40. 68; Cruger v. McLaury, 41 id. 219, 69 2 Black. Comm. 43; Coke, 2 inst. 222. 43, note. 66 Supra, p. 166 ; De Lancey v. Piep- 'O Skeat, Diet., says, " farm " means gras, 138 N. Y. 26 ; Cagger v. Lansing, rent ; cf. Dalrymple, Feudal Prop. 33. 64 id. 417 ; cf. People v. Trinity ''^ Tomlin, Littleton, 272, note k ; Church, 22 id. 44, as to adverse claim Hargrave, note s to Co. Litt. 143b; of grantee in fee, and also Stuart v. 2 Washb. Real Prop. 7. City of Easton, 74 Fed. Rep. 854. ''^ As to what are fee farm rents, ^'^ Supra, § 20, p. 148; Van Rens- see Van Rensselaer v. Read, 26 N. Y. selaer v. Read, 26 N. Y. at p. 564. at p. 564 ; Devisees of Van Rensselaer 6* Dalrymple, Feudal Prop, at p. 33, v. The Exrs. of Platner, 2 Johns. suggests this origin very indirectly. Cas. 24, 26; 3 Preston, Abstracts of Professors Pollock and Maitland so Title, 54. intimate, i Hist. Eng. Law, 218, 273, "'^ Van Rensselaer v. Platner, 2 617; but it should be said that, prior Johns. Cas. 17; People ex rel., etc. v. to the publication of their great Haskins, 7 Wend. 463; Hunter v. 174 Perpetual Rents. rent as a mere incident of tenure after the Statute of Quia Emptores (A. D. 1290)7* In the province of New York the existence of manors probably led, in legal theory, to a tenure by suit and service of the manor, non obstante the Statute of Quia Emptores, and to the reservation of perpetual rents, even without a rent charge or clause of re-entry''^ on grants of land in fee, where such land was situated within the limits of the manor. Without the manors the reservation of a perpetual rent on grants in fee, without a rent charge, or clause of re-entry, was no doubt invalid.''® How far the practice of the manors may have influenced the subsequent law regarding perpetual rents in New York, where there was no rent charge, is an interesting, but uncertain, question. Prior to the War of Independence, and in 1774, the Legislature intervened in favor of all perpetual rents, re- served within or without the bounds of the manors, giving a remedy on them in case they had been paid for three years within the twenty years preceding." This act was a repetition of the English statute, 4 George II, chapter 28, making " rents seek " rents of assize and chief rents, collectible as were rents reserved on leases. Enough stress has not been laid on this act in any of the late cases involving rents reserved on estates in fee.'* Remedies for the Collection of Perpetual Rents. In 1805 the act 32 Henry VIII, chapter 34,™ enabling grantees of reversions to take Hunter, 17 Barb. 25; Church v. a right of re-entry for non-payment Shultes, 4 App. Div. 378; id. 312; of rent or services reserved, and Tyler v. Heidorn, 46 Barb. 439 ; affd., charged the same on the land. But see 6 Alb. L. J. 199 ; Van Rensselaer v. Hosford v. Ballard, 39 N. Y. at p. 150, Dennison, 35 N. Y. 393; Cent. Bank as to reservation or right to distrain. V. Heydorn, 48 id. 260; Parsell v. Stephens v. Reynolds, 6 N. Y. 454, Stryker, 41 id. 480; Bradt v. Church, 456. no id. 537; Jackson ex dem. Van 76 Co. Litt. 144a, and Mr. Hargrave's Rensselaer v. Hogeboom, 11 Johns, note; Watkins, Descents (4th Eng. 163; Const. 1894, 189s, art. 1, § 13; ed.), note, p. 247; Van Rensselaer v. £■* jM/>ro, p. 14s, under § 20, "The Real Hays, 19 N. Y. 68, 76; i Sanders, Prop. Law;" Stranaghanv. Youmans, Uses & Trusts, 208, 209; cf. chap. 6s Barb. 392 ; Ward V. Terry, 36 Misc. 14, n. y. Laws of 1774; Jones v. Rep- 330. Reilly, 174 N. Y. 97, 104; De Lancey T^Challis, 3; Watkins, Descents, y. Ganong, 9 id. 9, 24. note to 4th ed., Lond., p. 247 ; i San- 77 chap. 14, N. Y. Laws of 1774. ders. Uses & Trusts, 208, 209 ; Stra- 78 yide Bradby, Distress, 35 ; Stra- han. Law of Property (3d London han, Law of Property, 37. ed.), 37. 38. ^2 J. & V. 184; supra, pp. 63, 68, 75 The draughtsmen of the grants in 83, 106. fee, in the manors, usually reserved Perpetual Rents. 175 advantage of conditions and covenants, was extended by an act of the Legislature to " grants or leases in fee." ^'^ In i860, the Legis- lature, however, provided that the act of 1805 and its several re- enactments should not extend to conveyances in fee thereafter made, or made before the act of 1805.*^ But the courts then determined that, independently of these acts, a covenant for the payment of rent passed to the devisee or assignee of the rent.^^ Effect and Object of the Statutes of New York. The effect of the act of 1805 and those other acts saving rents depended much on the former common law. As after the Statute Quia Emptores no subject outside of the old manors could reserve rents in England as an inci- dent of tenure,®^ the reservation of perpetual rents in New York out of estates in fee, led even within the old manors to much litiga- tion and discussion.** In order to save such rents on grants in fee it was maintained in some cases that the Statute of Quia Emptores never was in force in New York before 1787,®^ when it was re- enacted in Jones and Varick's revision of the English statutes.*® This absurd contention was finally decorously negatived in Van Rensselaer v. Hays.*^ It will be remembered that in 1786, two lawyers, Messrs. Jones and Varick, were appointed, by the Legisla- ture of this State, revisers, for the purpose of determining what acts of the English Parliament had extended to the province of New York, and were fit for re-enactment under the Constitution of 1777.** They prepared the "Act concerning tenures " ** re-enacting the Statute "Quia Emptores." The subsequent confusion about this act was due to lawyers' inability to account for the manors of New 80 Chap. 98, Laws of 1805 ; i R. L. Trusts, 208, 209 ; Watkins, Descents 364, § 3 ; I R. S. 748, § 2S ; infra, (4th ed.), note, p. 247 ; Van Rensselaer § 193, The Real Prop. Law; Van v. Hays, 19 N. Y. 68, 76. Rensselaer v. Ball, 19 N. Y. at p. 104. 84 See " Rents, Covenants and Con- 81 Chap. 396, Laws of i860, and ditions," by Bingham and Colvin, § 193 of The Real Prop. Law. But Albany, 1857, for a one-sided and meanwhile chap, 274, Laws of 1846, confused history of the tenants' con- and 2 R. S. 505, § 30 (now §§ 1504, tentions. 1505, Code Civ. Proc), had been en- 85 Ug Peyster v. Michael, 6 N. Y. acted. 467; Van Rensselaer v. Smith, 27 82 Van Rensselaer v. Read, 26 N. Y. Barb. 104. 558; Cruger v. McLaury, 41 id. 219, 86 2 J. & V. 67, 68. 227, note ; Cent. Bank v. Heydorn, 48 87 jq n. Y. 68. id. 260. 88 I J. & V. 281. 83 Challis, 3 ; i Sanders, Uses & 89 2 J. & V. 67, 68. 176 Perpetual Rents. York, as they were regarded, at first, as inconsistent with the exist- ence of the Statute Quia Emptores in the province of New York.^ In reality this great statute did not prohibit the erection of manors by the Crown in the colonies, or where the land was not in tenure prior to the statute.^^ Perpetual Rents Within the Manors of New York. The manors of New York were, with the exception of the Dutch patroonships, all created subsequently to the statute abolishing in England the feudal inci- dents of tenure.^2 While it was quite competent for the sovereign to create manors in Crown-lands not in tenure prior to i8 Edward I,®^ such modern freehold and non-feudal manors in New York can only be defined " as seisin of a defined district with the power of sub-infeudation therein and the existence of freeholders holding of the manor and the right to a court baron in which the feudatories were judges." ®* Undoubtedly most of the pre-revolutionary grants in fee reserving a perpetual rent in New York, without a rent charge, were of lands originally situated within the precincts of the supposed manors. It is highly probable that in these modern freehold manors •counsel relied in draughting conveyances in fee on the existence of subinfeudation and on the freeholders' tenure of the manor.^ Perpetual Rents after Independence. When the War of Independ- ence disturbed in America the whole English theory of government and law, there was an effort by the Legislature of New York to preserve existing rents and to substitute for tenure some statutory provision.®^ These acts preserved future reservations. This theory will probably be found to explain the early practice in New York. 90 De Peyster v. Michael, 6 N. Y. L. Cas. at p. 83. A New York manor 467; Van Rensselaer v. Smith, 27 implied either this or nothing except- Barb. 104. ing a territorial ownership. 91 In some colonies, as in Pennsyl- 9B Delacherois v. Delacherois, 11 H. vania, for instance, there was a non L. Cas. 62; Verschoyle v. Perkins, 13 obstante clause in the charter. But Irish Eq. 72, 82; cf. Williams on Sei- without this, the Crown was not pre- sin, 23; People v. Van Rensselaer, 9 vented from erecting manors out of N. Y. at pp. 336, 338. England. Verschoyle v. Perkins, 13 96 Chap. 14, N. Y. Laws, 1774; 2 J. Ir. Eq. 72; Van Rensselaer v. Hays, & V. 68, § s ; i K. & R. 64; 2 R. L. of 19 N. Y. 68. 1813, 71 ; chap. 98, Laws of 1805 ; 92 12 Car. 2, chap. 24. Van Rensselaer v. Smith, 27 Barb. 93 Challis, 18, 19; Van Rensselaer 151, 152; Tyler v. Heidorn, 46 id. 439; V. Hays, 19 N. Y. 68. i R. S. 718, § 4; id. 747, §§ 23, 24, 25; 9* Delacherois v. Delacherois, 11 H. Old Code, §§ iii, 112. Fee-farm Rents. 177 At a later period other acts saved all rents reserved. But quite inde- pendently of such acts the courts of the State finally uphold any reservation of rent on grants of non-agricultural lands in fee.^^ These grants in fee after 1805 stood, however, on the same footing in New York as demises, or leases, at least, until 1860,^^ and were, therefore, often called " leases," evidently with a view to reconcile them to the statutes and law relating to demises.^^ But estates in fee, reserving perpetual rents, are nevertheless not " terms of years," but estates of inheritance or fees.^ The real reason for dubbing them " leases " has been explained, and will be repeated for emphasis. Fee Farms not Leases. Fee farms were called " leases " with a view to obtain the benefit of all the statutes of New York, saving rents. These acts sometimes referred to fee farm grants as " perpetual leases." ^ But it is obvious that a fee simple cannot be a term of years f a demise is a term, while a fee may last forever. A lease or demise has a terminus a quo and a terminus ad quem, or it is no term of years. An estate enduring possibly forever has no term, and must be a fee. So to call a grant of a " fee " a " lease " is both an anachronism and a logical inconsistency, yet in New York this is done by such high authority as to make the departure from prin- ciple honored in the breach. The inconsistency is obvious when we consider covenants in such perpetual leases. They will not be im- plied, although the rule is otherwise in respect of leases proper.* 9^ Van Rensselaer v. Read, 26 N. Y. 98, Laws of 1805 ; Tyler v. Heidorn, 558; Van Rensselaer v. Dennison, 35 46 Barb. 447; Willard, Real Prop, id. 393 ; Parsell v. Stryker, 41 id. 480 ; 206 ; i R. S. 748, § 25. Cent. Bank v. Heydorn, 48 id. 260; 1 Verschoyle v. Perkins, 13 Irish Bradt v. Church, no id. 537. Eq. 72; Stuart v. City of Easton, 74 98 Per Wright, J., in Van Rensselaer Fed. Rep. 854 ; sed cf. De Lancey v. V. Smith, 27 Barb. 104; People ex rel. Piepgras, 138 N. Y. 26; People ex rel. V. Haskins, 7 Wend. 463; 2 R. S. 505, v. Haskins, 7 Wend. 463. § 30 ; chap. 274, Laws of 1846 ; §§ 1504, ^ Cf. 2 J. & V. 108 ; chap. 98, Laws 1505, Code Civ. Proc. ; chap. 98, Laws of 1805, and see note to Cruger v. of 1805; 2 R. L. 364, § 3; I R. S. McLaury, 41 N. Y. pp. 227, 228. 748, § 25 ; chap. 396, Laws of i860, ^ See Abeel v. Radcliff, 13 Johns, and § 190, The Real Prop. Law ; Bradt 297, 299. V. Church, no N. Y. 537. * Carter v. Burr, 39 Barb. 59, on i 99 Van Rensselaer v. Jewett, 2 N. Y. R. S. 738, and now § 216, The Real 141; Church V. Wright, 4 App. Div. Prop. Law. 312; Church V. Shultes, id. 378; chap. 12 178 Fee-farm Rents. Legal Dispute over Fee Farm Rents. The great mass of litigation which has taken place over fee farm rents in New York has been largely due to counsels' failure to distinguish between remedies due to tenure and remedies not due to tenure.^ At common law rent incident to tenure could be collected only by the feudal remedy of distress, or by virtue of the Statute "Cessavit per hiennium." ® But where rent was reserved in a written instrument under seal covenant lay, and in several cases modern statutes aided the collection of rents seek and chief rents.^ Parties to a contract of this character must always be presumed to have contracted in reference to the change of remedies.* Subsequent to Independence, the old custom of re- serving and demanding perpetual rents was continued, but not with- out protests. In the cases of Main v. Feathers,® Van Rensselaer v. Bonesteel,^^ and Van Rensselaer v. Chadwick,^^ the counsel for the owners of the lands subject to fee farm rents maintained strenuously that since the abolition of tenure in the State of New York, fee farm rents were uncollectible by distress or by any other statutory substi- tute, and that the only remedy of the original grantor was personal on the covenant;-'^ that an assignee or devisee of the rent could not recover on the covenant, and that an assignee of the land took it discharged from the rent, as covenants to pay rent did not run with the land, except where there was a tenure subsisting, such as that between a lessor and a lessee.^^ These propositions made the issue a very plain one. Theories Concerning Remedies for Collecting Perpetual Rents. It is very obvious that, at first, after the partial abolition of tenure in New York, the enforcement of covenants and conditions subsequent an- nexed to fee farm rents was generally thought to depend largely ^ E. g., see "Rents and Covenants,'' * Martin v. Rector, ii8 N. Y. 476. by Bingham and Colvin, passim; 9 21 Barb. 646. Bradby, Distress, 35 ; Strahan, Law of i" 24 Barb. 365. Property, 37. 11 24 Barb. 333. 6 6 Edw. I, chap. 4; 13 Edw. I, '^^ Sed. cf. chap. 14, Laws of 1774, chap. 21. founded on 4 Geo. II, chap. 28. '^ Supra, pp. 174, 17s, 176; 4 Geo. II, '^^Sed. cf. chap. 98, Laws of 1805; chap. 28; chap. 14, Laws of 1774; i R. L. 364, § 3; i R. S. 747, § 23; chap. 98, Laws of 1805 ; i R. L. of chap. 274, Laws of 1846 ; 2 R. S. 195, 1813, § 3; and see i R. S. 747, § 23; § 15; § 193, The Real Prop. Law; 2 chap. 247, Laws of 1846; 2 R. S. 334, R. S. 505, § 30; §§ 1504, 1505, Code § 4; 2 R. S. 29s, § IS, as to heir. Civ. Proc. Collection of Perpetual Rents. 179 on the Legislature.^* Hence, the celebrated act of 1805/^ mentioned above. The statute 32 Henry VHI, chapter 34, enabling grantees and assignees of reversions to take advantage of conditions annexed to the estate, was not really applicable to a fee farm, as sometimes said ; it related to estates vi^hich were less than a fee.^'^ Thus, reme- dies for rent due in New York on a fee farm have arisen here wholly out of the necessities of the case,^'' and were probably intended originally to protect those perpetual " leases " which arose before Independence in the manors, and which were made at a time when the seigniories were supposed to be valid, and to create the obligations of tenure on those demises devoid of right of re-entry, or a rent charge.^* The portions of the statute of the State enabling assignees of reversions to take advantage of a breach of conditions annexed to estates less than fee were, however, taken from the statute 32 Henry VIII, chapter 34, which was always supposed to be in force in New York ; and on this supposition it was contained in Jones and Varick's Revision of the English Statutes extending here.^^ So, the assignability of a condition subsequent reserved on a fee farm grant was statutory.^" At common law, while a fee farm rent was assign- able,^^ a right to re-enter reserved was not assignable inter vivos^^ 1* Nicoll V. N. Y. & Erie R. R. Co., L. Cas. 62 ; Verschoyle v. Perkins, 13 12 N. Y. at pp. 131, 132. Irish Eq. 72. If the seigniories were 15 Chap. 98, Laws of 1805 ; I R. S. valid, the Statute Quia Emptores did 747, §§ 23, 24; I R. S. 748, § 25; Nicoll not operate on conveyances within V. The N. Y. & Erie R. R. Co., 12 N. the manor, and the tenure was by suit Y. at p. 131 ; Van Rensselaer v. Hays, and service of the manor. The lord 19 id. 68; Van Rensselaer v. Ball, id. of the manor had escheats and rever- 100. sions, and could always invoke all 16 2 J. & V. 184. At common law a remedies sanctioned by tenure. I have possibility, right of entry, thing in elsewhere expressed a doubt as to action, cause of suit, or title for con- the validity of the seigniories in some dition broken, could not be assigned of these modern manors, irrespective over. Hence, 32 Hen. VIII, ckap. 34; of statutes validating the grants. 2 J. & V. 184; Comyn, Landl. & Ten. 182 J. & V. 184; supra, p. 150, § 20. 267 ; Upington v. Corrigan, 151 N. Y. 20 Chap. 98, Laws of 1805 ; i R. S. 143, 147, 148. 747, § 23; id. 748, § 25 ; Upington v. i'if4 Webster, 254; chap. 98, Laws of Corrigan, 151 N. Y. at p. 150. 1805; I R. L. 363, § 3; c/^. 2 J. & V. 21 Gilbert, Rents, 138; Shep. Touch. 237, § 18 ; Judge Hare's note to Dump- 238 ; Co. Litt. 143b, note, or's Case, i Smith, Lead. Cas. 22 2 J. & V. 233 ; Litt., § 347 ; i R. L. 18 Delacherois v. Delacherois, 11 H. 434, § 17; Judge Hare's note to Dump- 180 Perpetual Rents. nor devisable.^^ The statutes changed these rules in New York.2* Prevailing Legal Theory. But, subsequently to i860, or after the re- peal of the statute of 1805 and its re-enactments,^^ it was finally held that " fee farm," or " perpetual," rents are covenants real which run with the land, and are binding upon the heirs and assigns of the cove- nantor successively during their respective ownership.^^ It was also held that the grant left no possibility of reverter, or reversion,^^ and that the rent was a tenement or incorporeal hereditament, and de- visable, assignable, and descendible.^^ These litigations over deeds in fee reserving rents are among the most interesting and instructive in our judicial history, and entitled to be regarded as among the most wisely-decided cases of any country. In summing up the present condition of the law on this head, the court say " that, since the act concerning tenures,^® the courts (of New York) have given careful attention to the distinction existing between conditions im- plied by the law of tenures and those created by the acts of the parties and expressed in the conveyance. Any condition by acts of the parties, if expressed in the conveyance, is valid unless it contra- venes some general rule of law; and if the condition expressed in the grant be valid, a right of entry for its breach reserved to the grantor and his heirs or assigns by the express terms of the grant or's Case, i Smith, Lead. Cas. ; cf. v. Read, 26 id. 558, 564 ; Cent. Bank Van Rensselaer v. Read, 26 N. Y. at v. Heydorn, 48 id. 260; Hunter v. p. 564. Hunter, 17 Barb. 25. 23 Challis, 153; Shep. Touch. 120; ^t Van Rensselaer v. Ball, ig N. Y. Upington V. Corrigan, 151 N. Y. 143. at p. 104; Van Rensselaer v. Read, 26 24 NicoU V. N. Y. & Erie R. R. Co., id. at p. 563 ; Cagger v. Lansing, 64 12 N. Y. 121, 131; chap. 98, Laws of id. 417; sed. cf. Upington v. Cor- 1805; I R. S. 747, § 23; id. 748, § 25; rigan, 151 id. at p. 150, quoting NicoU 2 R. S. 505, § 30; chap. 274, Laws of v. N. Y. & Erie R. R. Co., 12 id. at 1846; §§ 1504, 1505, Code Civ. Proc. p. 132; p. 166, supra. 25 Chap. 98, Laws of 1805 ; I R. S. 28 Van Rensselaer v. Slingerland, 26 748, § 25; chap. 396, Laws of i860; N. Y. 580; Van Rensselaer v. Read, see note to Cruger v. McLaury, 41 id. 558, 564; Cagger v. Lansing, 64 N. Y. at p. 227. id. 417, 429; Cruger v. McLaury, 28 Van Rensselaer v. Snyder, 13 N. 41 id. 2ig ; Hunter v. Hunter, 17 Barb. Y. 299; Van Rensselaer v. Ball, 19 25; § 49, The Real Prop. Law. id. 100; Van Rensselaer v. Slinger- 293 J. & V. 67; i K. & R. 64; 2 R. land, 26 id. 580; Van Rensselaer v. L. 70. Barringer, 39 id. 9; Van Rensselaer Perpetual Rents. 181 is also valid." ^^ It will be observed that such a reservation on a grant of urban lands in fee^^ would seem very like a " possibility of reverter," for on a breach of the condition subsequent the grantor, his heirs or assigns, may enter.*^ It is, therefore, now lawful in practice to reserve such a " possibility of reverter " on breach of a condition subsequent in a grant of a fee determinable, notwithstand- ing that no such possibility is said to be implied by the mere reserva- tion of a rent on a grant in fee simple.^^ Unless there is a provision for a re-entry on a grant in fee reserving a rent, or something from which it can be fairly inferred that the continuance of the estate is to depend on the condition, the reservation may be a mere covenant and not a condition subsequent.** As stated above, the rights of entry, usually reserved on fee farm grants, are not now regarded as " possibilities of reverter," but as creating estates on condition.^^ Independently of any statute, even those now in force,^^ the de- cisions of the courts of this State have placed future grants in fee, reserving rents out of non-agricultural lands, in a position of safety and security by the repeated adjudications, that the heirs, assigns or devisees of the rent have all the rights of the original grantor of the land, and that covenants for the payment of the rent run with the land.*''' The ordinary remedy for the non-payment of rent reserved on 30 Van Rensselaer v. Dennison, 35 429 ; Van Rensselaer v. Read, 26 id. N. Y. at p. 400; cf. I Sanders, Uses at p. 563; Van Rensselaer v. Denni- & Trusts, 208, 209, as to law of Eng- son, 35 id. at p. 399; i Sanders, Uses land after the Stat, of Quia Emptores & Trusts, 288, 289; p. 166, supra, terrarum; Van Rensselaer v. Read, 26 3* Graves v. Deterling, 120 N. Y. N. Y. 558, 39 id. 9, no id. 537. 447, 457; Van Rensselaer v. Read, 35 31 Const, of 1846 and 1894 (art. i) id. at p. 576 ; Van Rensselaer v. Den- prevents leases of agricultural lands nison, id. 393; Cruger v. McLaury, for longer than twelve years. 41 id. at p. 222; Jones v. Reilly, 174 32Challis, 63; Nicoll v. N. Y. & id. 97, 104. Erie R. R. Co., 12 N. Y. 133 ; Towle 35 Van Rensselaer v. Ball, 19 N. Y. V. Remsen, 70 id. 309; Proprietors of at p. 104; Van Rensselaer v. Read, the Church in Brattle Square v. Grant, 26 id. at p. 563 ; Cagger v. Lansing, 3 Gray (Mass.), 142; § 193, The Real 64 id. 417, 429. Prop. Law, formerly i R. S. 747, 36 §§ 1504, 1505, Code Civ. Proc. § 23 ; chap. 274, Laws of 1846 ; 2 R. S. 37 Van Rensselaer v. Read, 26 N. Y. 29s, § 15; 2 R. S. 505, § so; §§ 1504, 558; Van Rensselaer v. Dennison, 35 1505, Code Civ. Proc; 64 N. Y. 417, id. 393; Van Rensselaer v. Barringer, 430; 172 U. S. 206, 210. 39 id. 9; Bradt v. Church, no id. 537; 33 Cagger v. Lansing, 64 N. Y. 417, Ward v. Terry, 36 Misc. Rep. 330. 182 Perpetual Rents. grants in fee, or " perpetual leases," is ejectment,^® at least where there is reserved a right of re-entry for non-payment of such rent. Ejectment determines the estate. It is said that ejectment will not lie on a lease containing no clause of re-entry for non-payment of rent.^^ But where ejectment lies by the owner of a fee farm rent, it determines the so-called perpetual lease, and, after twenty years therefrom, a title by adverse possession begins to run.*" Validity of a Reservation of Perpetual Rents. As was intimated in Hawley v. James, there is nothing per se in a perj>etual reservation of a rent which is hostile to the rule against a perpetuity. The land itself is as much in the market as ever. The holder of the rent, for the time being, may sell, assign or discharge the rent for a gross sum at any time he chooses.*^ Rents reserved on alienations in fee are incorporeal hereditaments,*^ descendible from those to whom they are reserved** as a new purchase, and not incident to the reversion at common law.** Restraint on Alienation of Fee-Farms. Any restriction on rights of tenants in fee farm to alienate is now void.*^ De Lancey v. Piepgras. A recent and most interesting case in New York has construed the rights of the Crown and its successor, the State of New York, in respect of fee farm grants and rents,*^ hold- ing that the estate of the tenant was a qualified or conditional fee, and that for non-payment of the rent the Crown might, by inquisi- ^^ Supra, p. 170; Martin v. Rector, Watkins, Descents, 290; i Inst. 12b; 118 N. Y. 476; §§ 1504, 1505, Code 3 Preston, Abstracts of Title, S4- Civ. Proc; cf. Ward v. Terry, 36 **3 Preston, Abstracts of Title, 54. Misc. Rep. 330. *^ Vide supra, p. 109 ; and Lun- 39 Delancey v. Ganong, 9 N. Y. 25 ; ham's Estate, Ir. Rep., 5 Eq. 170, cited Jones v. Reilly, 174 id. 97, 104; and Strahan, Law of Property, 39. see Ward v. Terry, 36 Misc. Rep. 330. *6 State farm rents having all been ** Church v. Wright, 4 App. Div. commuted by statute (i J. & V. 250; 312; Church V. Shultes, id. 378, and chap. 23, Laws of 1786; chap. 33, Laws cases there cited; cf. chap. 227, Laws of 1798; chap. 222, Laws of 1819), a of 1900; Ward v. Terry, 36 Misc. Rep. case of this character rarely arises in 330. the courts. But, as shown in the case *i Cf. 16 Wend, at p. 154. in question, the learning is not ob- *2 Hunter v. Hunter, 17 Barb. 25, solete. Before the Revolution in this citing 2 Black Comm. 41, et supra, country, a question concerning a p. 173. royal seigniory was justiciable only in *3 Hunter v. Hunter, supra, citing England. Stokes, British Colonies, 6. De Lancey v. Piepgras. 183 tion, have the estate declared at an end and resume possession.*'^ The decision is of great historical interest, and elsewhere it has been since considered with reference to some authorities not dis- cussed in that case. As some points of the decision in question are obiter dicta, it is open to the practitioner to consider whether the decision is accurate too, in holding that a " fee farm " grant was a qualified or conditional fee, and that the Crown had, in New York, any special, or summary, remedy for the non-payment of quit rents. The grants of territory in New York by the Crown were usually of estates in fee simple, subject to a quit rent. They contained no express conditions, and no clause for distress or re- entry. They were consequently, in colonial times, considered de- fective,** and great embarrassment was often found in the overt attempts to collect the quit rents due to the Crown. Any rights of the Crown, in respect of rents here, probably depended wholly on the nature of the royal seigniory or on tenure.** As nearly all the reported cases refer to tenure between subject and subject, it may be pointed out that the king's seigniorial rights were not de- pendent on the legal bond, termed a " reversion," but on that termed " escheat ;" a reversion denoting, strictly, the superior rights of some mesne lord.^" The seigniorial rights of the Crown over a royal seigniory of the character of the province of New York had been much modified by legislation, after the feudal settlement, and it is, perhaps, even now open to further discussion, whether the Crown ever had, in New York, any reversion on a fee farm, or any such summary remedy for the collection of quit rents, as that definitely intimated in De Lancey v. Piepgras. The Statute of Marlebridge,*^ in any event, took away the seigniorial power to distrain a fee, and this statute, we know, bound the king.^^ In consequence whereof, the remedy of feudal lords became personal, and then was passed the Statute of Gloucester^^ and Westminster 2d,^* which gave them the writ of cessavit per biennium, in case *T De Lancey v. Piepgras, 138 N. Y. Eq. 72, 80 ; Bradby, Distress (N. Y. 26; cf. in arguendo, Stuart v. City of ed. of 1808), 91. Easton, 74 Fed. Rep. 854, as to con- ^* Watkins, Descents, 2. editions in grants in fee simple. ^1 52 Hen. Ill, chap. 22. *8 Doc. relating to Colonial Hist, of ^^ 2 Inst. 142 ; cf. Gilbert, Rents, 92. N. Y., vol. 5, 363. ^3 6 Edw. I, chap. 4. *9 Verschoyle v. Perkins, 13 Irish ^4 13 Edw. I, chap. 21. 184 Perpetual Rents. the quit rents were not paid for two years. There are cases in the English books which certainly tend to hold that a fee farm is not an estate on condition, and that the remedy of the Crown for the collection of quit rents, where there was no right of re-entry re- served, and no rent charge, was very dubious and dilatory.®^ As soon as a tenant in fee had acquired, in English law, the right of alienation without consent of the lord, the feudal escheat for failure of heirs became a sort of caducary succession,^® and thereafter the right of the lord to forfeit a fee for non-payment of a quit rent depended largely, if not wholly, on statute.^'' Before the Revolu- tionary War there was, however, no court in the colonies com- petent to pass upon the legality of the claims of the Crown in re- spect to its seigniory ;^^ hence, probably, the reason for the paucity of authority on the point in De Lancey v. Piepgras. Presumption of Payment of Perpetual Rent. In an action to recover rent reserved on a grant in fee, non-payment of rent for a period of sixty-three years does not raise a conclusive presumption of re- lease when the covenant sued on remains in the hands of plaintiff, his heirs or assigns, uncanceled.^^ Discharge of Record of Perpetual Rent. On petition where no rent has been paid for twenty years, the court may now declare that the rent has been released to the owner of the fee.®* The act authorizing this represents the public hostility to perpetual rents. Discharge of a Perpetual Rent. It is laid down by Littleton that if a man has a rent charge issuing out of certain lands and purchases any part of them the rent charge is extinct.®^ Lord Coke says the reason is because the rent is entire and issues out of every part of the land.®^ But this effect may be obviated by agreement or con- vention, which amounts to a new grant of a rent issuing out of the residue of the land.®* 55 Atty.-Gen. v. Mayor of Coventry, so Chap. 227, Laws of 1890. 2 Vern. 713. 61 Litt., § 222. B6 Burgess v. Wheate, i Eden, 177; 62 Cq Litj 147b; Cruise Dig., tit. Verschoyle v. Perkins, 13 Irish Eq. 72. 28, chap. 3, § 16 ; Van Rensselaer v. 57 Re-enacted in New York, 2 J. & Chadwick, 22 N. Y. 32. V. 108 ; chap. 98, Laws of 1805. ®3 Cruise Dig., tit. 28, chap. 3, § i8 ; 58 Stokes, British Colonies, 6. Church v. Seeley, no N. Y. 457, 461; 59 The Cent. Bank v. Heydorn, 48 and see apportionment under § 192, N. Y. 260; cf. chap. 227, Laws of infra. 1890. Estates of Inheritance. 185 Apportionment of Perpetual Rent. It is held in this State that there is nothing in the nature of a rent charge which prevents it being apportioned.''* If a part of land descends to the grantee of the rent it will be apportioned according to the value of the land.*"^ It may be apportioned by convention or agreement,^® although this may amount to a new rent as stated above. Perpetual Rent Bound by Judgment, when. A fee farm or perpetual rent reserved out of an estate in fee was, if containing a rent charge, an interest in land which was bound by a judgment, and it might be sold on execution ; but otherwise of a rent seck.^'' Rents, how Limited. Rents thus reserved might themselves be the subject of estates, limited in analogy to estates in lands. The re- striction on the creation of such estates de novo is in the present law.''* Estate of Inheritance, when Cut Down. An estate of inheritance given in one part of a will in clear and decisive terms is not cut down by implication by subsequent words not equally clear and decisive.®® But when by limiting the character of the first estate the second may be preserved, the court will give such construc- tion, unless it is subversive of the entire scheme.^" Estate by Implication. Even in the absence of express words, a devisee may take an estate by implication.''^ 6* Van Rensselaer v. Chadwick, 22 Ruger, J., in Van Home v. Campbell, N. Y. at p. 34. 100 id. at p. 319; Benson v. Corbin, 65 Van Rensselaer v. Chadwick, 22 145 id. 351; Brown v. Perry, 51 App. N. Y. at p. 35; and see Reeves, Real Div. 11; Marks v. Halligan, 61 id. Prop. Law, § 119. 179, 182; cf. Harriot v. Harriot, 25 ^Church V. Seeley, no N. Y. 457. id. 245; Herzog v. Title Guarantee & 6'7 The People ex rel. Rosekrans v. Trust Co., 177 N. Y. 86, 93. Haskins, 7 Wend. 463. to Wager v. Wager, 96 N. Y. 164, «*§ 50, The Real Prop. Law. 174; Smith v. Van Ostrand, 64 id. ^ Washbon v. Cope, 144 N. Y. 287 ; 278 ; Norris v. Beyea, 13 id. 273 ; Ban- Byrnes V. Stilwell, 103 id. 453, 460; zer v. Banzer, 156 id. 429; Felter v. Campbell v. Beaumont, 91 id. 464; Ackerson, 35 App. Div. 282, 284; Roseboom v. Roseboom, 81 id. 356; Kurtz v. Wieckmann, 75 id. 26. Clarke v. Leupp, 88 id. 228 ; Clay v. '^i Masterson v. Townshend, 123 N. Wood, 153 id. 134; Thomas v. Troy Y. 458, 462; Matter of Vowers, 113 City Nat. Bank, 19 Misc. Rep. 470; id. 569, 571; Jackson v. Dillenger, 18 Matter of Peters, 69 App. Div. 465, Johns. 368, 381 ; Marsh v. Hague, i 468 ; Trask v. Sturges, 170 N. Y. 482 ; Edw. Ch. 174, 182 ; Marks v. Halligan, Freeman y. Coit, 96 id. 63, 68; Mat- 61 App. Div. 179. ter of Gardner, 140 id. 122, 126; 186 Reservations on Alienations. Reservation of Rights of Action. A reservation is something taken back out of that clearly granted.''^ On grants in fee, reservation of rights of action for subsequent damage to easements appurtenant to the estate granted are illegal.''^ Reservation in Favor of Strangers. So reservations in favor of strangers to the title are inoperative.''* 72 Myers v. Bell Telephone Co., 83 N. Y. 135; West. Union Tel. Co. v. App. Div. 623. Shepard, 169 id. 160; and again 170; ''^ Pappenheim v. Metropolitan El. s. c, 72 App. Div. 108, 132. R. R. Co., 128 N. Y. 436 ; Kernochan ''* Vorhees v. Presbyterian Church V. N. Y. El. R. R. Co., id. 559; Stil- of Amsterdam, 8 Barb. 135; affd., 17 well V. Kennedy, 36 Misc. Rep. 359; id. 103; sed. cf. Hawley v. James, 16 Pegram v. Elevated R. R. Co., 147 Wend, at pp. 153, 154. Estates Tail Abolished. 187 § 22. Estates tail abolished; remainders thereon. — Estates tail have been abolished; and every estate which would be adjudged a fee tail, according to the law of this state, as it existed before the twelfth day of July, seventeen hundred and eighty- two, shall be deemed a fee simple; and if no valid remainder be limited thereon, a fee simple absolute. Where a remainder in fee shall be limited on any estate which would be a fee tail, according to the law of this state, as it existed previous to such date, such remainder shall be valid, as a contingent limitation on a fee, and shall vest in possession on the death of the first taker, without issue living at the time of such death. Formerly i Revised Statutes, 722, sections 3 and 4 : § 3. All estates tail are abolished; and every estate which would be ad- judged a fee tail, according to the law of this state, as it existed previous to the twelfth day of July, one thousand seven hundred and eighty-two, shall hereafter be adjudged a fee simple; and if no valid remainder be limited thereon, shall be a fee simple absolute.''^ § 4. Where a remainder in fee shall be limited upon any estate, which would be adjudged a fee tail, according to the law of this state, as it existed pre- vious to the time mentioned in the last section, such remainder shall be valid as a contingent limitation upon a fee, and shall vest in possession, on the death of the first taker, without issue living at the time of such death.'^^ Estates Tail Turned into Fees Simple. Estates tail had been con- verted into estates in fee simple at an early period after independ- ence of the Crown." The Revised Statutes simply modified the older statutes abolishing entails so as not to cut off a remainder in fee limited upon a fee tail.'^^ An estate tail is, however, only abolished at the present day by being converted into an estate in fee simple, which, if no valid remainder is limited thereon, is now termed a fee simple absolute.™ The statutes of 1782 and 1786, abolishing entails, and prescribing the course of descents in New T5 Repealed, chap. S47, Laws of defective. Jackson ex dem. v. Van 1896. Zandt, 12 Johns. 169, and Medcef '6 Repealed, chap. 547, Laws of Eden's Case, 20 id. 483 ; Lytle v. Bev- 1896. eridge, 58 N. Y. 592, 601. '^Chap. 2, Laws of 1782, and re- ''^ § 22, supra; 1 R. S. 722, § 4; vised in 1786, chap. 12, Laws of 1786; Matter of Moore, 152 N. Y. 602. 1 J. & V. 245. The act of 1782 was ^ § 22, supra; i R. S. 722, § 3. 388 Remainders on Estates Tail Saved. York, operated prospectively, as well upon vested remainders in tail as upon those estates tail which had taken effect in possession."" Before the Revised Statutes the acts abolishing entails had cut off remainders limited on an estate tail.*^ Then the effort of the courts was to support such remainders as executory devises after the death of first taker without issue, although this necessitated the reversal of the English decisions, that a failure of issue meant an indefinite failure of issue, or an estate tail.*^ Remainders Limited on a Fee Tail Saved. The Revised Statutes ex- pressly saved remainders on a fee tail.^^ The Revised Stat- utes did not actually prohibit the creation of estates tail in the sense of making them void ; but they allowed them to arise, and on the instant they arose converted them into estates in fee sim- ple absolute.** Nevertheless, in so far as an estate tail in remainder may be regarded as a " future estate," under the Revised Statutes,^ it is declared abolished.^^ What Words Create an Estate Tail. The books of the common law are very replete on this subject,®'' but it is also discussed in many cases in this State.** Estates Tail in Personalty. Estates tail could not be formerly in limitations of personal property.*^ But at the present day, as limi- 80 Jackson ex dem. v. Van Zandt, 12 Southwick, 70 id. 581 ; Nellis v. Nel- Johns. i6g; Vanderheyden v. Cran- lis, 99 id. 505, 511; cf. Mr. Harrison's dall, 2 Den. 9; Van Rensselaer v. argument in Medcef Eden's Case, 16 Poucher, S id- 35- Johns, at p. 392 et seq.; Seaman v. 81 Lott V. Wyckoflf, 2 N. Y. 355 ; Harvey, 16 Hun, 71 ; Coe v. De Witt, Barlow v. Barlow, id. 386 ; Van Rens- 22 id. 428 ; Matter of Kirk v. Rich- selaer v. Kearney, 11 How. (U. S.) ardson, 32 id. 434. As to what words 297. create an " estate tail," see Baker v. 82 Cf. 4 Kent Comm. 279, note h, Lorillard, 4 N. Y. 257 ; Harriot v. and note of revisers to i R. S. 722, § 4, Harriot, 25 App. Div. 245, 248. Appendix H, infra. And see remarks 85 § 27, infra; i R. S. 723, § 10. of text under § 38, The Real Prop. 86 § 26, infra; i R. S. 726, § 42. Law, infra. 87 Tudor, Lead. Cas. Real Prop. 83 Matter of Moore, 152 N. Y. 602; 750-754; Challis, 237, 238. Harriot v. Harriot, 25 App. Div. 245, 88 Baker v. Lorillard, 4 N. Y. 257, 248 ; revisers' notes, i R. ST 722, § 4, 263 ; Harriot v. Harriot, 25 App. Div. Appendix II, infra. 24s, 248. 8* Wilkes v. Lyon, 2 Cow. 333 ; Lott 89 Norris v. Beyea. 13 N. Y. 273. V. Wyckoff, 2 N. Y. 355, 359; Buel v. "^ Estates Tail. 189 tations of future estates in personalty are subject to all the pro- visions of this article,"" it is assumed that the creation of an estate tail in personal property, being a future interest therein, would be subject to the provisions of this section.^^ 90 1 R. S. "jT^i, § 2. 287, 30s ; Putnam v. Lincoln Safe "1 Cf. Norris v. Beyea, 13 N. Y. Deposit Co., 34 Misc. Rep. 333, 341 ; 273 ; Van Home v. Campbell, 100 id. Rudd v. Cornell, 58 App. Div. 207, 217. 190 " Freeholds," etc., Defined. § 23. Freeholds; chattels real; chattel interests. — Estates of in- heritance and for life, shall continue to be termed estates of freehold; estates for years are chattels real; and estates at will or by sufiferance, continue tO' be chattel interests, but not liable as such to sale on execution. Formerly i Revised Statutes, 722, section 5 : § S. Estates of inheritance and for life, shall continue to be denominated estates of freehold; estates for years, shall be chattels real; and estates at will or by sufferance shall be chattel interests, but shall not be liable as such to sale on executions.*^ Freehold Estates. The term " freehold estate " was preserved by the Revised Statutes to denote both a fee simple and an estate for life.®^ Hence, as before the revision, no less an estate than these can constitute a freehold.^* Freehold estates, therefore, are freeholds of inheritance and freeholds not of inheritance, but an estate pur autre vie, though an estate for life may pass to executors of tenant pur autre vie now by statute.®^ In England the term " free- hold," used simpliciter, has come to denote an estate for life,^® but it is not so in this State. " Freehold " and " freeholder," formerly in New York, as m England, indicated the status of the tenant and were significant of political privileges now almost swept away in this State. At the time of the Revised Statutes the status of free- holder had still some political significance, and the adoption of the ancient definition of a freehold estate in lands made allodial was, therefore, still convenient. Commissioners to make partition must still be freeholders, — so certain office-holders and sureties. After defining " estates of freehold " the revisers proceeded to define " es- tates not of freehold." ^ Estates Not of Freehold. In treating of estates not of freehold, the Revised Statutes provided that " estates for years " were to be denominated " chattels real ;" but " estates at will " or " by suffer- ance," were to be " chattel interests." ®* This section was declara- 92 Repealed, chap. 547, Laws of opposition to an estate of inheritance. i8g6. Real & Pers. Prop. 123. 93 I R. S. 722, § S- ^ See next section, 24, of this act. 9* Mr. Josiah W. Smith says that in 96 Smith, Real & Pers. Prop. 123. England " freehold " simpliciter has *'' See next paragraph, come to denote an estate for life, in 98 j r g. 722, § 5, supra. Terms of Years. 191 tory of existing law.®® The history of " terms of years," in the law of England, is not obscure. Terms of Years. Long " terms of years " are very ancient in prac- tice,^ but the common law did not rank them as legal estates. Noth- ing was an " estate " at common law which could not be protected by the common law itself.^ It is said by Challis that terms of years became legal estates only by virtue of the statute 21 Henry VIII, chapter 15, which enabled the termors to falsify recoveries obtained on feigned titles. Mr. Digby is inclined to place this period earlier,* but he is not quite justified, as complete protection was not given to termor until 21 Henry VIII.* Step by step, terms of years were raised to the dignity of legal estates.^ Littleton, while fully recog- nizing tenancies and the quantity of interest each kind of tenancy denoted, nowhere calls " terms of years " estates.^ The status of terms of years as legal estates, therefore, was no doubt later than Littleton's time, as Challis so well ipoints out. But this status was settled before the law of England was applied to New York, and the revisers of the statutes simply adopted an existing description of the quantity of interest a termor might have, treating the in- terests, in conformity with pre-existing law, as legal estates.'^ Es- tates for years, being chattels real,® did not, however, at common law go to heirs but to executors as personal property.® The Re- vised Statutes modified the common law in respect of estates for years, for although they are still chattels real and go to executors,^** 883 Black. Comm. 103, 140; cf. Put- ^Averill v. Taylor, 8 N. Y. at pp. nam v. Westcott, 19 Johns. 73, 76. 51, 52. 1 The records of the monasteries ^ Qf^ § 6g_ show long leases at a very early day. '' Cf. Averill v. Taylor, 8 N. Y. at Vide supra, pp. 18, 147. p. 52; Pugsley v. Aikin, 11 id. 494, 2 Challis, 46, 47; Spelman Gloss. 498; Burr v. Stenton, 43 id. 462, 465. sub voce " Catalla." Catalla dicuntur * Putnam v. Westcott, 19 Johns. 73, omnia bona mobilia, et immobilia, qus 76; et § 39, The Real Prop. Law. nee feuda sunt nee libera tenementa. ® 2 Black. Comm. 143 ; Bennett v. This is equivalent to stating that only Rosenthal, 11 Daly, 81; Matter of a fee or feud of inheritance and a life Althause, 63 App. Div. 252, 255. tenement were estates. And see un- i** § 2712, Code Civ. Proc. ; 2 R. S. der § 20, supra, pp. 133, 137. 82, § 6; Pugsley v. Aikin, 11 N. Y. 3 Digby, Hist. Real Prop., chap. 3, 494, 498; Despard v. Churchill, 53 id. par. 17; chap. 5, par. i. 192, 199; Matter of Althause, 63 App. * Challis, Real Prop. 46, 47. Div. 252, 255. 192 Chattels Real. a judgment binds and is a charge on them as assets for distri- bution. ^^ Estates for years being chattel interests are usually conveyed by leases or by assignments of leases. Chattels Real. While chattels real are personal property within the Transfer Tax Law,^^^ they are not within the purview of the chattel mortgage statutes, requiring and refiling to preserve the lien against creditors.^^ Execution against Estate for Years. An estate for years might, un- der the Revised Statutes, be sold on execution (2 R. S. 182, 359 ; i id. 722, § 5), and the same provision now applies to unexpired terms of five years.^^ The owner of such an estate may redeem a prior incumbrance." 11 Bennett v. Grain, 41 Hun, 183 ; 71 N. Y. 341 ; State Trust Co. v. Despard v. Churchill, 53 N. Y. 192, Casino Co., 19 App. Div. 344. igg ; People ex rel. v. McAdam, 84 id. ^^ Code Civ. Proc, § 1430 ; O'Rourke 287, 295. V. The Henry Prouse Cooper Co., 11 11% Matter of Althause, 63 App. Civ. Proc. 321 ; Brewster v. Striker, Div. 252. I E. D. Smith, 321 ; Broman v. Young, 12 Chap. 279, Laws of 1833; chap. 35 Hun, 173, 180. (>TJ, Laws of 1892 ; Booth v. Kehoe, 1* Burr v. Stenton, 43 N. Y. 462, 465- Estates pur Autre Vie. 193 § 24. When estate for life of third person is freehold, when chattel real. — An estate for the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee; after his death it shall be deemed a chattel real. Formerly i Revised Statutes, 722, section 6 : § 6. An estate during the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee, but after his death it shall be deemed a chattel real.i^ Estates for Life of Third Persons. At common law if tenants pur autre vie, simpliciter, die, living cestui que vie, any one might enter and take possession. One so entering was called " special occu- pant," because his title was by occupation. But this entry might be prevented by giving the estate to the heirs or administrators of tenant pur autre vie after his death, living cestui que vie. Special occupancy might take place only in the event of a failure to give the estate to such heirs or administrators.^^ The English Statute of Frauds^'' first made tenancies pur autre vie devisable ; and, if not de- vised, assets in the hands of the heir when the estate fell upon him as special occupant. This statute was deemed to extend to the province of New York and was re-enacted at the revision of such statutes.^* The Revised Statutes,^^ in imitation of the English Statute of Geo. 11,^ made such estates assets in the hands of ad- ministrators in all cases. An estate pur autre vie being declared to be a freehold only during the life of the grantee or devisee, was, on the grantee's death, made to pass to his executors during the remainder of the life of cestui que vieP- Thus, the old right of any stranger to take possession by special occupancy of such lands after the grantee's death,^ where the lands were not limited also to 15 Repealed, chap. 547, Laws of 21 1 r. s. 722, § 6. See Reviser's 1896. note, and Lalor, Law of Real Prop. 16 Co. Litt. 41b ; Goodeve, Real New York, 62. Prop. 36, 37 ; 23 Law Mag. & Rev. 7. ^^ Crooked Lake Nav. Co. v. Kenka 1^29 Car. II, chap. 3, § 12. Nav. Co., 37 Hun, 9, 13; 2 R. S. 82, 18 2 J. & V. 94, § 4; I K. & R. 178, %6; cf. Co. Litt. 41b; Gillis v. Brown, S 4; I R. L. 36s, § 4. 5 Cow. 388; Smith, Real & Pers. 19 2 R. S. 82, § 6. Prop. 380. 20 14 Geo. II, chap. 20, § 9. 13 194 Estates pur Autre Vie. the grantee's heirs or executors, was taken away.^^ In this State es- tates pur autre vie had long been devisable,^ passing under a gen- eral devise of lands and tenements.^ Presumption of Death. If a person on whose life an estate depends absent himself for seven years he is presumed dead.^® 23 Cruise, tit. 3, chap, i, §§ 43-48. 25 Wright v. Trustees Meth. Church, 2* I K. & R. 178, § 4; cf. Mr. Har- Hoffm. Ch. 201, 225. grave's note, 241 ; Co. Litt. 41b, as to ^e § 841, Code Civ. Proc. ; Ruoflf v. English statutes to same effect, 29 Greenpoint Savings Bank, 40 Misc. Car. 2, chap. 3. Rep. 549 ; McNulty v. McNulty, 41 id. 293; cf. §§ 2302-2319, Code Civ. Proc. Estates in Possession and Expectancy. 195 § 25. Estates in possession and expectancy. — Estates, as re- spects the time of their enjoyment, are divided into estates in possession, and estates in expectancy. An estate which entitles the owner to immediate possession of the prop- erty, is an estate in possession. An estate, in which the right of possession is postponed to a future time, is an es- tate in expectancy. Formerly i Revised Statutes, 722, section 7, and i Revised Statutes, 723, section 8: § 7. Estates, as respects the time of their enjoyment, are divided into estates in possession, and estates in expectancy.^'' § 8. An estate in possession, is where the owner has an immediate right to the possession of the land. An estate in expectancy, is where the right to the possession is postponed to a future period.^s Comment on Section 25. The foregoing section of the Revised Stat- utes adopted Blackstone's classification, and divided estates into estates in possession and estates in expectancy.^ In a note the original revisers indeed refer to Cruise's Digest for the definition of estates in expectancy.^" It is, therefore, obvious that there was no intention on the part of the revisers to depart very widely from the pre-existing or common-law notions touching the quantity and the quality of estates in lands. They expressly state in their notes that their real object was to simplify the learning connected with estates in expectancy. This motive is, however, independent of classifications. But as classifications of estates had become very minute in the writings of modern lawyers, the revisers adopted the more general scheme. This section refers to what was formerly denominated the quantity of estates.^^ Possibilities. Whether possibilities are estates under the Revised Statutes and this act is not determined, as those statutes do not de- fine " estates." But as statutes, using common-law terms, are to be construed by that jurisprudence, in the absence of a contrary intent,^^ we may conclude that " mere possibilities " or " naked possibilities " are not " estates in expectancy " within this section.^''' 2T Repealed, chap. 547, Laws of 1896. 3i Supra, p. 135. 28 Repealed, chap. 547, Laws of 1896. ^2 Supra, p. 87. 29 2 Black. Comm. 163. 33 4 Kent Comm. 262 ; Challis, 58 ; 30 Cruise Dig., tit. 16, chap, i, § i ; Nicoll v. N. Y. & Erie R. R. Co., 12 Revisers' notes to i R. S. 723, § 8, N. Y. at p. 133 ; Towle v. Remsen, 70 Appendix II, infra. id. 303, 312, 313; Vail v. Long Island 196 Estates in Possession and Expectancy. Contingent Remainders. Contingent remainders, although not es- tates at common law, are included in the term " estates in expect- ancy." ^* Reversions. Reversions and remainders, not vested in possession, fall under this section and are classified as " estates in expectancy," if they come up to the necessary quantum of estates,^^ although a reversion is not a " future estate " by express provision of this statute^^ and is always a vested estate.^'' Estates in Expectancy. All quondam future uses, contingent re- mainders and remainders vested in interest but not in possession, as well as all former executory devises or interests, are to be classified as estates in expectancy under this section.^^ R. R. Co., io6 id. 283; Upington v. Law. And see under § 49, id., infra. Corrigan, 151 id. 143, 148; § 25, supra. Griffin v. Shepard, 124 N. Y. 70. 3* Vide § 49, infra. 36 § 26, The Real Prop. Law, infra. 35 §§ 20, 26, 27, 29, The Real Prop. 37 § 29, The Real Prop. Law, infra. 384 Kent Comm. 271. Future Estates and Reversions. 197 § 26. Enumeration of estates in expectancy. — All expectant es- tates, except such as are enumerated and defined in this article, have been abolished. Estates in expectancy are divided into, 1. Future estates; and 2. Reversions. Formerly I Revised Statutes, 726, section 42, and i Revised Statutes, 723, section g : § 42. All expectant estates, except such as are enumerated and defined in this Article, are abolished.*® § 9. Estates in expectancy, are divided into, 1. Estates commencing at a future day, denominated future estates: and 2. Reversions.*** Comment. The abolition of all expectant estates, except such as are saved by enumeration and definition in this article, requires us to consider, what have become of the former estates tail and executed uses since the abolition of all such estates? Estates Tail. A fee tail is by this act converted into a fee simple in the first taker ; but it cannot be abolished, for unless the fee tail is still allowed to be created, its conversion into a fee simple could not take place.*^ Uses. Uses. By the Statute of Uses*^ (27 Hen. VIII, chap. 10) ; re-enacted in New York in 1787 (2 J. & V. 68; i R. L. 72), uses became legal estates whenever the statute operated. The quantity of such estates depended on the limitation of the use ; but, like estates created by common-law assurances, executed uses could be divided in respect of their quantity only into estates for years, for life, in fee, or in tail.** So the quality of the use controlled the estate created by the statute.** The Revised Statutes declared all uses not expressly saved in the act abolished,*^ yet the important sections of the Statute of Uses (27 Hen. VIII, chap. 10) were re-enacted.*^ Uses, therefore, cannot be said to be wholly abolished,*^ 39 Repealed, chap. 547, Laws of 1896. *5 j r s. 727, § 45 ; The Real Prop. *" Repealed, chap. S47, Laws of 1896. Law, § 71, infra. *i Vide supra, p. 187, under § 22. *« i R. S. 726, §§ 47, 49; The Real *2 It was in force in New York Prop. Law, §§ 72, 73. after 1664. *'^ § 70, infra; Eysamen v. Eysamen, *3 Wharton, Conv. 11, 92; Crabb, 24 Hun, 430; Townshend v. Frommer, Real Prop., § 2; supra, pp. 31, 135. 125 N. Y. at p. 457. ** Supra, p. 13s. 198 Future Estates and Reversions. but if not saved as trusts, or as charitable uses, they are still con- verted by the statute into legal estates of the quantity enumerated in section 20 of the present act. Uses Classified. Treated as legal estates, uses were formerly classi- fied, not with reference to the quantity of the estate, but with re- gard to the character of the limitation contained in the instrument creating the use. Sugden classifies uses as " shifting," " spring- ing " and " future ;" the last class denoting those uses which took effect as remainders.'** The section of this act now under considera- tion takes no note of future, shifting or springing uses as estates, but classifies them all as " future estates," and intends that all prospective estates shall be so designated,*' whether created mediately and only by virtue of oiir Statute of Uses, or by immediate convey- ances.^** Executory Devises. Estates created by will which cannot, con- sistently with the rules of the common law, take effect as re- mainders, were sometimes styled " executory devises," ^^ but more accurately " executory interests." ^^ This section of The Real Property Law includes all quondam executory devises in " future estates." There is now no such thing as an executory devise.^^ Yet the term is occasionally used to indicate a contingent future estate in derogation of an estate limited at the same time and by the same will.^* But on the principle of construction that the common law should prevail, the court will never construe a limitation as an execu- tory devise if it may be supported as a remainder.^^ Future estates and reversions are defined in subsequent sections.^^ Executory devises formerly embraced two classes of limitations: (i) A substitution of one fee for another upon some event determin- able of the first fee. (2) A fee to commence in possession at some *8 Sugden's note to Gilbert on Uses p. 47 ; cf. Booth v. Baptist Church, 126 & Trusts, 152, 153 (English ed. of id. at p.. 237. See next section (27), 181 1). infra; Van Home v. Campbell, i-oo «§ 71, The Real Prop. Law; i R. N. Y. at p. 295. S. 727, § 46. s* Beardsley v. Hotchkiss, 96 N. Y. BO Griffin v. Sheppard, 124 N. Y. at p. 213 ; Manice v. Manice, 43 id. 70, 75- . 303, 368. 61 2 Powell, Devises, 237, and cases 55 Manice v. Manice, 43 N. Y. at p. there cited. 368; Miller v. Van Schwarzenstein, 52Challis, 57. Si App. Div. 63 Tilden v. Green, 130 N. Y. at se § 27, 28, The Real Prop. Law. Future Estates and Reversions. 199 future day, without any particular estate to support it in the mean- time. The old rule against perpetuities applied to executory de- vises.'^ At the present day such limitations may be made by a deed or a will, provided only they do not violate the new rule against perpetuities.'* All former executory uses, contingent remainders and executory interests or devises are now future estates; and even remainders vested in interest are such, if possession is postponed.®® S'' Supra, p. 41 ; infra, under § 32. M § 2J, The Real Prop. Law. B8 §§ 32, 40, The Real Prop. Law. 200 Future Estates Defined. § 27. Definition of future estates. — A future estate, is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate", or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time. Formerly i Revised Statutes, 723, section 10: § 10. A future estate, is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate, created at the same time.*** Comment on Section ay. The defining sections of this act (26, supra, and 28, infra) are to be read in conjunction. The revisers with great perspicuity expressly state in their notes that the object of the above definition was to comprehend every species of expectant estate created by the act of the party, remainders, strictly so called, future uses and executory devises. Strictly, " future uses " were those uses which took effect as remainders after a precedent use or estate limited by the same instrument.^-* But the revisers undoubtedly meant by " future uses " all uses not taking effect immediately in possession. Thus all former remainders, executory uses and execu- tory devises are now future estates.®^ In deference to the older law, the term " executory devise " to denote a future estate is still employed at times.^^ Future estates, as defined in this section, may be either vested or contingent; for, although a vested remainder is in point of in- terest a present estate, it is future in reference to enjoyment and possession.^* Reversions, for some reason of the revisers are con- trasted with future estates, although not vested in possession.^ 60 Repealed, chap. 547, Laws of 1896. ** Leonard v. Burr, 18 N. Y. at *i Sugden's note (pp. 152, 153) to p. 107; Booth v. Baptist Church, 126 Gilbert, Uses & Trusts (ed. of 1811), id. at p. 237; supra, f. 198; § ^, supra. supra, p. 37. ** Rudd v. Cornell, 58 App. Div. 62 Revisers' note to I R. S. 723, 207, 216 ; cf. Wharton, Conveyancing, § 10; Tilden v. Green, 130 N. Y. at 95. p. 47 ; Jesup V. Pringle Memorial 6" § 26, The Real Prop. Law. Home, 27 Misc. Rep. 427; Griffin v. Shephard, 124 N. Y. 70. Remainder Defined. 201 § 28. Definition, remainder. — Where a future estate is depend- ent on a precedent estate, it may be termed a remainder, and may be created and transferred by that name. Formerly i Revised Statutes, 723, section 1 1 : § II. Where a future estate is dependent on a precedent estate, it may be termed a remainder, and may be created and transferred by that name.*^ Comment on Section z8. The language of the new section is the same as the Revised Statutes, no change whatever being made. The original revisers of the statutes added no particular note or comment on section 11. We must, therefore, consider: (i) What was a remainder at common law. (2) The changes made by the Revised Statutes in the law touching remainders. Remainders at Common Law. A remainder at common law is gen- erally referred by more modern commentators to Lord Coke's defini- tion : " The ' remainder ' is a residue of an estate in land, depending upon a particular estate, and created together with the same, and in law Latine it is called remanere." ^'^ At common law there could be no remainder without a particular estate created at the same time.^* In other words, a fee simple was sometimes divided by a conveyance into a " particular estate " (which might be for years,®'* for life,™ or a fee taiP), and the remainder of the fee simple. The particular estate, preceding a vested remainder of freehold, might, at common law, be a term of years, and in that case the seisin during the continuance of the term was vested in the remainderman.''^ But the particular estate preceding a contingent remainder of freehold could not be a term of years; because then the seisin would be in abeyance during the contingency. Such a contingent remainder would have been void for want of a sufifi- cient estate to support it.^^ A " remainder " was originally created by what is called a " legal limitation," that is by some limitation originally allowed by the 66 Repealed, chap. S47. Laws of i8g6. '^i 10 Rep. 97b. Fees tail were con- ^^ Co. Litt. 49a ; 2 Black. Comm. verted into fees simple in New York. 164; 4 Kent Comra. 197 ; and Tomlin's Chap. 2, Laws of 1782; chap. 12, note to his " Lyttleton," p. 248. Laws of 1786 ; i J. & V. 245 ; Co. Litt. ^ Co. Litt. 49a. i8a ; Wilkes v. Lyon, 2 Cow. 333 ; ^ Id., supra. Cruise Dig., tit. 16, chap, i, § 6. 70 2 Black. Comm. 164. '''^3 Rep. 19, Boraston's Case. 73 Goodright v. Cornish, i Salk. 220. 202 Remainders. common law before the Statutes of Uses and Wills. It was the only limitation of an estate to commence in futuro, permissible by common law at the time when livery of seisin was essential to a perfect conveyance. Subsequently to the Statute of Uses a re- mainder might be created by a conveyance to uses, thus taking effect under the Statute of Uses ; but even then, in deference to the older law, the limitation was subject to all the rules touching the older law of remainders, and the " use-remainder " was defeated unless it vested at the time, or before, the particular or precedent estate, or use, ceased or determined. Remainders after the Statute of Uses. After the several Statutes of Uses and Wills, remainders ceased to be the only limitations whereby estates in futuro could be created. Such estates could be effected also by wills, or " executory devises," or by conveyances to uses, whereby, through the Statute of Uses, a future estate sprang into being or shifted from one tenant to another.'^* Such estates as were thus effected were called " springing " or " shifting " uses ; or, if created by way of devise, without the means of the Statute of Uses, " executory interests." But two of these new classes of future estates could be said to be dependent on a precedent estate, viz., a " shifting use," and an " executory interest," which displaced an estate created by the same devise, sometimes called " a shifting devise." Neither a springing use nor a springing devise (which were simply estates to take effect in futuro, without displacing any other estates, created at the same time) could be said to be de- pendent on precedent estates. A remainder might also be limited by way of a will after the Statute of Wills. Remainders under the Revised Statutes. With this explanation of the state of the law when the Revised Statutes went into effect, it is very obvious that at the present time, under the above sections of the statutes of this State, a " remainder " includes all those es- tates which now take effect in possession subsequently to some other estate, created at the same time, and upon whose cessation such remainders depend for their enjoyment in possession. If " future estates " are wholly independent of a precedent estate they do not fall under this section. A statutory " remainder," there- fore, now embraces only such estates as were (i) remainders by the common law; (2) all former shifting uses and (3) all those execu- tory interests which were called " shifting devises." A statutory T4 Supra, pp. 34, 38, 39, 198. Remainders. 203 remainder, as defined above, cannot embrace such former estates as were effected by springing uses or springing devises, for they were not dependent on precedent estates. Consequently it follows that such springing estates as those mentioned are not now trans- ferable under this section (28) of The Real Property Law. In this aspect a resulting estate is not a precedent estate to support a statutory " remainder." The distinction is important, because, if it is accurate, a " springing devise " or a springing use might not now pass under a limitation of a " remainder," although they are both " future estates." '^ That the term " remainder " under the statute is much wider than at common law is not now to be doubted i'^ and it is to be observed that Chancellor Kent states that the statutory " remainder " includes all springing uses as well as shifting uses.^'^ But if he is accurate in this, the term " remainder " is thus made coextensive with the contrasted term " future estate," and becomes destructive of the statement of the statute, that a statutory remainder must be dependent on a precedent estate, for a springing use is not dependent on a precedent estate, and never was. That the courts now understand that a " remainder " must still be dependent on a precedent estate is obvious from several cases.''* In Schettler v. Smith it was held that where the limitation of a particular estate fails the remainder also falls.™ So an estate at will has been said to be still an estate of too frail a nature to uphold an estate in re- mainder.*" If this former rule of the common law remain in force since the Revised Statutes, which is very doubtful, it must be due to some such distinction as that just pointed out in reference to springing limitations. Remaiders under this Section. At common law the term " remain^ der " about the time of the enactment of the Revised Statutes, began to have a wider meaning than formerly, and was sometimes used to denote any subsequent interest in lands.*^ But the term never was employed to denote an estate which was to spring into being in ""^ Cf. Pond V. Bergh, 10 Paige, at 616, 617; Harty v. Doyle, 49 Hun, p. 156. 410, 413; Matter of Runcie, 36 Misc. ™ Hawley v. James, 5 Paige, 318, at Rep. 607. p. 466; Pond V. Bergh, 10 id. 140, '^941 N. Y. 328, 347; sed vide sub 156; Beardsley v. Hotchkiss, p6 N. Y. § 32, infra, on this point; Cochrane v. at p. 213. Schell, 140 N. Y. at p. 526. ''T 4 Comm. 272. 80 Willard, Real Prop. 158. T8 Dana v. Murray, 122 N. Y. 604, *! Smith, Compend. Law Real & Pers. Prop. 231. 204 Remainders. futuro without any preceding estate to support it. In such cases the ad interim estate was not created,®^ but resulted, or, in other words, may be said to have depended on the executory or future estate.**^ It seems clear from the residue of the article of the Revised Statutes on Estates that the revisers intended to embrace in the term " re- mainder," (i) Estates which regularly succeeded the expiration of some precedent estate created at the same time,®* and (2) estates which took effect in derogation of some precedent estate created at the same time,^ and that they intended former springing estates to be classed as " future estates " and not as " remainders." What Estates Remainders Include. The term " remainder," as em- ployed in the above section, embraces both " contingent " estates and " vested " estates, if in some way dependent upon precedent estates created at the same time.*® By statute such estates by way of remainder are made descendible, devisable, and alienable,*^ whether vested or contingent.^ As this section of the statute pro- vides that certain estates pass under the name of " remainders," it is important for the practitioner to determine whether a quon- dam " springing use," or a " springing devise," would so pass, and the foregoing observations are ofifered with this view. Nature of Estate to Support a " Remainder." The nature of this pre- cedent estate to support a remainder is not now confined as at com- mon law to an estate for years, for life, or in tail.*^ A remainder may now depend on or be in derogation of an estate in fee, which can support a statutory remainder.^ The precedent estate, it is said, may be one to trustees and the remainder to cestui que trust^^ although strictly such a limitation is not of a remainder but of a fee upon a base fee, permissible under the fortieth section of this act.^^ An estate at will has been said to be still of too frail a nature to support a remainder.®^ But, as before stated, this opinion seems 82 Fearne, Conting. Rem. 301, note, ^'^ § 49, infra, formerly i R. S. 725, 505- § 3S- 83 2 Black. Comm. 173; Cruise Dig., 88 Goebel v. Wolf, 113 N. Y. 405; tit. 28, chap. 18, § I ; Cornish, Uses, et infra, § 30. 68 et seq. ^^ Supra, pp. 24, 25, 26, 201. 8* I R. S. 724, § II ; The Real Prop. »» i R. S. 724, § 24; i R. S. 725, § 27; Law, art. II, § 28. The Real Prop. Law, art. II, §§ 40, 43. 85 I F S. 726, § 27; The Real Prop. 9i Cass v. Cass, 15 App. Div. 235. Law, art. xt, § 43; Beardsley v. Hotch- 92 yi^g i^fyg, under §§ 76, 80. The kiss, 96 N. Y. at p. 213. Real Prop. Law. 8« Dodge V. Stevens, 105 N. Y. at p. 93 Willard, Real Prop. 158. 588. Remainders. 205 of very doubtful validity since the Revised Statutes. This former rule of the common law''* must be superseded, and a " remainder " subsist on any sort of estate; i. e., the future estate would be sup- ported irrespective of the precedent estate, if not violative of the rule against perpetuities.®^ A future estate with no prior estate to support it is now valid, as was a springing use before the Revised Statutes. Cross-Remainders Limited after Estates not for Life. How far cross- remainders, limited after precedent estates which are not estates for Hfe, are permitted, will be considered under a subsequent section.^^ Cross-Remainders Limited on Estates for Life to Tenants in Common. The Revised Statutes essentially altered the common law touching cross-remainders limited after life estates to tenants in common. By the old law, an estate devised to my sons A., B., C, D., and E., and their heirs, and if all, or any of them, die without issue male, then devise over to another, created estates tail with cross-remainders.^'' Here estates tail were implied, because remainder after an in- definite failure of issue was void,®® while a remainder after the Stat- ute De Bonis might be well limited after an estate tail.®® If at common law remainders in fee were limited after any number of successive life estates to persons in being, the remainder was well limited, for there could be no objection to any number of success- ive vested life estates.^ The remainder might be to a person not in being.^ The Revised Statutes, while permitting a remainder in fee to a person not in being,* has provided that successive life estates shall be limited only to persons in being, and avoids those beyond two,* so that cross-remainders beyond two life estates are now impracticable,® estates tail being converted into fees simple.® 9*2 Washburn, Real Prop. 231; 4 99 Challis, 146, 241; et vide infra, Kent Comm. 235 ; 2 Black. Coram. 166. under § 32, The Real Prop. Law. 95 Jessup V. Pringle Memorial 1 Vide infra authorities cited under Home, 27 Misc. Rep. at p. 430. See § 33, The Real Prop. Law. remarks and citations under § 30, 2 Cruise Dig., tit. 32, chap. 24, §§ 32, infra, on " Remainders Limited on 34. Estates which never Arise.'' 3 Manice v. Manice, 43 N. Y. at p. 96 Infra, The Real Prop. Law, § 33. 374. 9'^ See the authorities cited. Cruise * i R. S. 723, § 17 ; The Real Prop. Dig., tit. 28, chap. 15, §§ 30-33; Lott Law, § 33. V. Wykoff, 2 N. Y. 355. 5 Purdy v. Hayt, 92 N. Y. 446, 455 ; 98 See the authorities cited infra, cf. Chapl. Susp. Alien. §§ 348, 366. under § 38, The Real Prop. Law. « Vide supra, § 22, The Real Prop. Law. 206 Remainders. Cross-Remainders. Cross-remainders are another qualification of expectant estates. These remainders now usually follow particular estates limited to tenants in common. But a limitation may be oi one lot to A. and another to B., and if either die without issue the survivor to take. Here A. and B. are not tenants in common but have cross-remainders. Between two persons cross-remainders present no difficulty under the existing law.'' When a similar limitation is made to more than two persons the result is more complex, for as each stock fails its share is directed to be equally divided among the other stocks.^ It will be remembered that in so far as cross-remainders are limited, after life estates, solely to persons in esse as tenants in common, they constitute no violation of the rule against perpetuity. The remainders are vested and any number of vested remainders do not offend against that rule.® But quite apart from the rule against perpetuities cross-remainders can, under the present law relating to estates, be limited only after life estates to persons in being at the date of the settlement, and when a cross-remainder is limited on more than two successive estates for life, all such other life estates are void and the remainder in fee vests in possession after the determination of Jthe first two life estates.^" At common law cross-remainders would not be implied in deeds, but arose only by express limitation and were always associated with estates tail. This distinction no longer exists.^* Invalid Limitations of Cross-Remainders. Thus cross-remainders lim- ited after life estates to more than two persons in being, offend the section regarding limitation of estates,^* and consequently accelerate the remainder in fee.^^ Of course, where the remainder in fee is to persons not in esse it is contingent, and if limited after estates for more than two lives in being, it is void as an unlawful perpetuity.^* Construction. A devise will never be construed as executory whgn it may take effect as a remainder. '** ■? Purdy V. Hayt. 92 N. Y. at p. 454. 12 The Real Prop. Law, § 33, infra. 8 I Prest. Est. 94 seq. 13 Purdy v. Hayt, 92 N. Y. 446, 455 ; 9 Vide under § 32, infra, and Purdy Chapl. Susp. Alien., § 348. V. Hayt, 92 N. Y. at p. 451. 1* § 32, infra. 1* The Real Prop. Law, § 33, infra. ^^ Supra, p. 198, under § 26, The 11 Vide § 205, The Real Prop.- Law. Real Prop. Law. Reversion Defined. 207 § 29. Definition, reversion. — A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate granted or devised. Formerly i Revised Statutes, 723, section 12 : § 12. A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determina- tion of a particular estate granted or devised.i"' Comment on Section 29. The definition of the statute conforms to the definition of a reversion by the common law. " Reverter " and " reversion " are synonymous terms ; but the word " reverter " is sometimes loosely used to denote what is properly termed " a possi- bility of reverter." "^ The term " reversion " is one of those which has undergone no change since the days of tenure." The term " reversion " under the Revised Statutes never included " a possi- bility of reverter." ^* With this definition of reversion the revisers finished their list of technical terms connected with legal estates. It will be observed that, originally, all these definitions are confined to those terms which relate to the quantum of legal estates in lands, and that now, as formerly, " reversion " signifies the part of an estate, or the part of a fee simple retained, or that which is left in a grantor or in his heirs by operation of law, while the term " future estate " denotes the interest or estate created or limited by an act or acts of parties to some instrument of conveyance. Yet a reversion may be a future estate, viewed from the point of view of possession.^® Some modern writers have classed both " reversions " and " re- mainders " among incorporeal hereditaments,^ because they were conveyed by grant and not by livery, as were freehold estates in pos- session. But this classification is criticised,^^ and it is said with some accuracy that the true test of corporeal hereditaments was not that they- lay in livery. This basis of the classification is, however, very 16 Repealed, chap. S47, Laws of 1896. at p. 75; §§ 26, 27, The Real Prop. I6y2 Challis, 63 ; supra, p. 163. Law ; Wharton, Conv. 94. "Co. Litt. 142b; I Prest. Est. 123. 20 i Washb. Real Prop. 11; Wil- is NicoU V. The N. Y. & Erie Ry. liams, Real Prop. 241 ; Strahan, Prop. Co., 12 N. Y. at p. 133. Such was the 147. common law: Wharton, Conv. 96; 21 Bingham, Descents, 7 ; Challis, 41, Challis, 63. 60, 61 ; Jenks, Modern Land Law, 93. 18 Cf. Griffin v. Shepard, 124 N. Y. 208 Reversion. inconsequential now that all future interests in lands are, by statute, to be conveyed by deed, livery of seisin being abolished.^ Particular Estate. The existence of a particular estate is as neces- sary to support a reversion as to support a remainder, and if the par- ticular estate cease, the reversion takes effect in possession.^ The particular estate may now be a term of years or a life estate; but when a term of years, the reversion is the estate itself subject to the term.2* Reversion Vests, when. Under sections 284, 285 of this act the re- version vests at the death of an intestate, and is not suspended during the intervening life estate.^ 22 I R. S. 738, § 136; The Real Prop. 24 Challis, 60, 61, -JT. Law, art. VII, § 206. 25 Barber v. Brundage, 50 App. Div. 23 Wharton, Conv. 96 ; cf. Kalish v. 123 ; affd., 169 N. Y. 368. Kalish, 166 N. Y. 368, 379; Williams V. Jones, id. 522, 536. Estates, Vested or Contingent. 209 § 30. When future estates are vested; when contingent. — A future estate is either vested or contingent. It is vested, when there is a person in being, who would have an im- mediate right to the possession of the property, on the de- termination of all the intermediate or precedent estates. It is contingent while the person to whom or the event on which it is limited to take effect remains uncertain. Formerly i Revised Statutes, 723, section 13 : § 13. Future estates are either vested or contingent. They are vested, when there is a person in being, who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain.^* Object of this Section. The distinction between " vested " and " contingent " rights, or estates, is of the first importance in the law of property. The revisers' object in defining " vested " and " con- tingent " has reference to the subsequent section relating to the unlawful suspension of the power of alienation. At common law, a vested estate or interest imports a present interest or seisin, and these in turn conclusively imply the right and power to convey and alienate the interest or estate.^ Contingent interest and estates were not assignable by the common law ;^ but they might be passed by fine, operating by way of estoppel, so as to bind the interest which should afterward accrue.^ At common law a contingent remainder was not an estate, but an interest or possibility.^* This distinction was, however, often lost sight of, and even Mr. Fearne terms a contin- gent remainder an estate at one time, but not at another.*^ When contingent remainders became assignable, at law, under the Revised Statutes, they were properly called " estates." ^^ The revisers do not, however, rely on that distinction, but point out " that an estate is inalienable when there are no persons in being by whom an absolute fee in possession can be conveyed.^^ A limitation to a person not in being was, however, always contingent.^* 28 Repealed, chap. 547, Laws of 1896. 30 2 Prest. Abst. Title, 107 ; Challis, 2T Lawrence v. Bayard, 7 Paige, 75, 42, 58; 2 Washb. Real Prop. 237. 76; Vanderpoel v. Loew, 112 N. Y. 3i Fearne, Conting. Rem. i, 385, 550. 167, 186; Sir Edward Sugden in Cole 32 j r. s. 725, § 35 ; § 49, The V. Sewell, 4 Dr. & W. at p. 28; s. c. Real Prop. Law, and cases thereunder 2 H. L. Cas. 230, 231 ; Snedeker v. cited infra. Congdon, 41 App. Div. 433. 33 i r. s. 723, § 15. 28 Cruise Dig., tit. 16, chap. 8, § 22. 34 See below, under § 32. 29 Cruise Dig., tit. i6, chap. 8, § 20. 210 Vested or Contingent. Vested and Contingent before the Revised Statutes. At common law, as Blackstone said, " vested remainders (or remainders executed, whereby a present interest passes to the party, though to be enjoyed in futuro) are where the estate is invariably fixed to remain to a determinate person, after the particular estate is spent. As if A. be tenant for twenty years, remainder to B. in fee; here B.'s is a vested remainder which nothing can defeat or set aside." ^^ " Con- tingent or executory remainders (whereby no present interest passes) are where the estate in remainder is limited to take effect, either to a dubious or uncertain person, or upon a dubious and uncertain event; so that the particular estate may chance to be determined, and the remainder never take effect. "** Early Common Law. By the very early common law the precise distinctions between estates vested and contingent interests could hardly have existed.^^ Before the Statutes of Uses and Wills, re- mainders were the only estates which took effect in futuro. Even remainders are said to have been at first rarely limited on con- tingencies, as it was thought that a remainder must always vest im- mediately, or otherwise it might be void.^* Mr. Joshua Williams states that the first instance of a contingent limitation of a re- mainder, which he found, occurs during the reign of Henry VI (A. D. 1422-1461).^* But later investigations disclose "contingent remainders " as early as the thirteenth century, or before the Stat- ute De Donis.*'' Be this as it may, ultimately contingent remainders became favorite limitations and were scientifically classified by Mr. Fearne and other writers on the law of the last century. When the Distinction between " Vested " and " Contingent " became Im- portant. The distinction between estates vested and estates or in- terests contingent became most important in the law of England only after the rise of executory limitations by way of future uses and devises. It then had particular reference to the rule against per- 35 2 Comm. 168. Law Quar. Rev. p. 23 ; 2 Pol. & Mait. 36 2 Comm. 169. Hist. Eng. Law, 22. ST Maitland, 6 Law Quar. Rev. p. 23 ; 39 Williams, Real Prop. Notes ; cf. Strahan, Prop. 175. Digby, Hist. Real Prop., chap. 5, § 3; 38 Supra, p. 22 ; Williams, Real Prop. Maitland, Remainders after Condi- 263, 264 ; Williams, " Essay on Settle- tional Fees, 6 Law Quar. Rev. 22 ; ments of Family Estates," i Jurid. So- Strahan, Prop. 173. ciety Papers, 45 ; sed. cf. Maitland, 6 *<> Maitland, 6 Law Quar. Rev. 22. Vested or Contingent. 211 petuities, as contingent or executory interests were not originally alienable, and could not be barred or defeated like remainders, and, therefore, suspended the power of alienation to some extent. Prior to the Revised Statutes, the recognized distinctions between " vested " and " contingent '' served here precisely the same purpose as in England, as the law of real property of England was in this particular the law of New York. Had executory interests raised by way of use or devise been held destructible in the same way as contingent remainders, the old rule against perpetuity must have been in some other form, and the distinction between contingent interests and vested estates of less consequence.*^ The Revised Statutes. This section, inserted originally in the article on Estates in the Revised Statutes, has led to the inquiry whether the revisers intended thereby to preserve the distinction known to the earlier law, or to raise up a new one, in harmony with the revision. Several writers on the text of the Revised Statutes have been of the opinion that the language employed was only declaratory of pre-existing distinctions,*^ which can only mean that remainders vested, or contingent, before the Revised Statutes continued to be remainders vested or contingent after the statutes. The statement thus paraphrased is too broad, and its truth was denied in the case of Moore v. Littel,*^ where a remainder contin- gent by the common law was adjudged a vested remainder under the Revised Statutes. This decision has been, however, questioned by several text-writers,** but as we shall attempt to show, without good reason, as it appears to many. The term " remainder " in the Revised Statutes is equivalent to the words " estate by way of remainder." *^ A remainder is now a " future estate," or an " estate in expectancy," *^ although not all expectant estates are remainders.*^ Classification of Estates. The distinction between estates vested and estates contingent is both a logical and a legal distinction. Mr. *i Lewis, Perpetuity, 128, 132, 134. 229; Chapl. Susp. Alien., §§ 28-53; i 42Lalor, Law Real Prop. 66; Chapl. Columbia Law Rev. 279. Susp. Alien. §§ 49-52; note of Austin *5 i r g 723, § 10; The Real Prop. Abbott in N. Y. Annual Dig. for 1892, Law, § 27. 363; Minot V. Minot, 17 App. Div. *« i R. S. 723, §§ 9, 11; The Real 521, 525. Prop. Law, §§ 26, 28; Sheridan v. *3 4i N. Y. 66. House, 4 Abb. Ct. App. Dec. 218, 226; **2 Washb. Real Prop. (4th ed.) Dodge v. Stevens, 105 N. Y. 585. *'' Supra, pp. 200, 202, 203. 212 Vested or Contingent. Fearne, who has written most profoundly on the legal distinctions as they existed in his day, subdivides estates vested into (i) vested in possession or (2) vested in interest,** and contrasts both with estates contingent. Mr. Preston thought this classification not sufficiently refined or comprehensive, and adds to it " estates exe- cuted " and " estates executory." *® It is, however, to be observed that Fearne, Blackstone, and Kent apply the distinction between vested and contingent mainly to the species of interests called " re- mainders " at common law,®" but that Mr. Preston's more minute distinctions will apply also to estates raised by executory limita- tions, and not solely by legal limitations. As executory limitations, uses and devises, permitted estate to arise on a greater variety of contingencies than those permitted by the common law, Mr. Pres- ton's classification is the more comprehensive. But, under the simpler forms employed in this State, it was thought by the revisers of 1828-1830 that the statutory classification of estates into " vested " and " contingent " was sufficiently comprehensive. Mr. Challis, how- ever, points out that executory interests are sometimes likely to be confused with contingent remainders, and it is no doubt the case that there are certain contingent interests and possibilities which are not embraced in the term " estates." ^^ As this section of The Real Property Law refers to estates only,®^ it can have no reference to interests which are not estates. Fearne's Classification. Having reference to the distinction already pointed out between common-law remainders and statutory re- mainders,®* let us consider in detail, but briefly, Mr. Fearne's cele- brated classification, as it is still frequently referred to in the courts of New York, without always noticing certain distinctions which make it wholly or partly irrelevant at times to the existing law. At common law, one of the main uncertainties about estates limited by way of remainder was their liability to be defeated by the destruction or cessation of the particular estate supporting them before the time designated for the vesting of the remainder. If this happened, the remainder could, by the common law, never take effect.®* Now, this uncertainty entered largely into Mr. Fearne's classification of contin- ■*8 Fearne, Conting. Rem. i. Bl yi^g i^f^a, under § 49, The Real *» I Prest. Est. 61, 65. Prop. Law. 60 2 Black. Comm. 169 ; 4 Kent ®2 § ^q, supra. Comm. 202. ®8 Supra, § 28, p. 202. ^ Supra, p. 25. Vested or Contingent. 213 gent remainders as may be seen by his initial definition. But the Revised Statutes wholly altered this rule of the common law.^^ Hav- ing regard to the contingency of the duration of the particular estate, Mr. Fearne divided all contingent remainders at common law into four classes, which will, in view of the frequent reference still made to them by modern lawyers, be noticed, after the various other systems or principles of classification have been first mentioned. Preston's Classification. Mr. Preston made only three classes of contingent interests at common law: (I) Those limited to persons not in esse; (II) those limited to survivors of a class; (III) those limited on an event which might not happen during the continuance of the particular estate.®'' Willes' Classification. Lord Chief Justice Willes stated that there were but two classes of remainders which did not vest: (I) Those limited to persons not in esse at the time the limitation took its first legal existence as an instrument de facto; (II) where the commence- ment of the remainder depended on some matter collateral to the de- termination of the particular estate.*'' The first class, it should be observed, must always be contingent under any system ; the second class have in New York now been subjected to statutory changes by the abrogation of the main legal rule which cut off a remainder, if it did not connect continuously with the seisin oi the precedent estate.** They have, therefore, ceased for that cause to be classed as contingent.*® Blackstone's Classification. Mr. Fearne's classification of remain- ders is sometimes thought too refined,^" and Blackstone's division preferred. Blackstone divides remainders into (i) Such as were limited to take effect to a dubious and uncertain person; or (2) upon a dubious and uncertain event.*^ But of all writers on this subject Mr. Fearne remains the leading authority on the old law as it stood in this State before the Revised Statutes. With this digression we may, therefore, turn our attention again to Mr. Fearne's classifi- cation. 6*1 R. S. 72s, §§ 32, 34; §§ 47, 48, 16, chap. I, § 43; 2 Black. Comm. 169; chap. 46 (Gen. Laws), The Real Prop. cf. Strahan, Prop. 150. Law. 58 § 47^ infra. *6 I Estates, 77. 59 Moore v. Littel, 41 N. Y. 66. 57 Smith d. Dormer v. Parkhurst, 3 «« Will. Real Est. & Conv. 163. Atk. 13s; Willes, 337; Cruise Dig., tit. ^1 2 Black. Comm. 168. 214 Vested or Contingent. Fearne's Classification, Classes i and 3. It will be readily observed that Mr. Fearne's first class of contingent remainders,^^ — (i) "where the remainder depends entirely on a contingent deter- mination of the preceding estate itself," and also his third class, (3) " where the condition, upon which the remainder is limited, is certain in event, but the determination of the particular estate may happen before it," ^^ — are mainly founded on contingencies which the Revised Statutes ceases to regard. The determination of a precedent estate before the remainder vests, is, by the Revised Stat- utes, no longer destructive of the remainder in our system. The old rule was a survival of the early feudal law of England,^ forbidding an abeyance of the seisin by act of the parties to a conveyance, and it was utterly destroyed by the reforms first instituted by the Re- vised Statutes.^^ The only connection which Mr. Fearne's first class of contingent remainders can have with existing law, since the Revised Statutes, relates to the possibility that the event on which the remainder is limited may never take effect,^® and not that such event may not take effect until the particular estate has determined.^'' In regard to these two classes of remainders, the reader of the present day will notice that Mr. Preston, before the reform of the law of real property, stated that they were not contingent in them- selves, and that they were only contingent with reference to the existing law on remainders.''® As the premature determination of a particular estate since the Revised Statutes produces no legal result upon a remainder limited upon it,^ the logical consequence of this statutory reform is to turn a large number of former contingent remainders into vested remainders.™ Limitation in the Event that a Person Die before Majority. A remain- der in fee, to take effect in the event that the persons to whom the first remainder is limited die under the age of twenty-one years, is called by the revisers " a contingent remainder," ''^ and if such it 62Fearne, Conting. Rem. 5; Wolfe ^ i R. S. 725, § 34; §i 47, 48, The V. Van Nostrand, 2 N. Y. 436. Real Prop. Law. ^ Fearne, Conting. Rem. 5. ** Prest. Abst. 107. 64 Supra, pp. 24, 42, 201. «9 Cf. Schettler v. Smith, 41 N. Y. 6B§§ 47, 48, The Real Prop. Law, at p. 347; Butler v. Butler, 3 Barb, being i R. S. 725, §§ 32, 34. Revisers' Ch. at p. 308. notes to these sections. to Moore v. Littel, 41 N. Y. 66. e» Butler v. Butler, 3 Barb. Ch. 304, ^1 § 32, The Real Prop. Law. 308. Vested or Contingent. 215 falls, probably, within Mr. Fearne's first class of contingent remain- ders; but this is certainly not a contingent remainder which now suspends the power of alienation unlawfully, for it is expressly tolerated by the Revised Statutes.''^ Mr. Fearne's First and Third Classes of Contingent Remainders. It is quite clear that those contingent remainders which were contingent at common law, because the particular estate might determine be- fore the contingency on which the remainder was to vest, are not contingent on that account since the Revised Statutes.''^ If the first and third of Mr. Fearne's classes of remainders are thus become wholly irrelevant to present conditions of our law, the integrity of Mr. Fearne's classification, as a whole, is, for present purposes, cer- tainly much impaired. Fearne's Second and Fourth Classes. But, as Mr. Fearne's classifica- tion'* is still so frequently referred to, let us briefly examine his re- maining classes, the second and the fourth: "(2) Where the con- tingency, on which the remainder is to take effect, is independent of the determination of the preceding estate," which involves, as he explains, a case " where some uncertain event, unconnected with, and collateral to, the determination of the preceding estate, is, by the nature of the limitation, to precede the remainder. As if a lease be made to A. for life, remainder to B. for life, and if B. die before A., remainder to C. for life; here the event of B.'s dying before 'A.' does not in the least affect the determination of the particular estate, nevertheless it must precede and give effect to C.'s remainder; but such event is dubious, it may or may not happen, and the remainder depending on it is, therefore, contingent." Remainders, after Life Estates with Power to Defeat by Consumption. There is a class of remainders now permissible in this State since the Revised Statutes where life tenant is given power to defeat the enjoyment of the remainder in possession, by a prior consumption of the entire estate.'^® Are such remainders, therefore, to be held to be contingent? If so, they resemble Mr. Fearne's second class, al- though he could not have anticipated their inclusion, as such a re- mainder was unknown in his day, and is only permissible by pro- ■^2 § 32, The Real Prop. Law. ''■* The inquirer may find Coleman's ■^3 I R. S. 725, § 34 ; The Real Prop. Epitome of Fearne a useful abridg- Law, § 48. ment. See also Challis, 98, seq. ■fs Infra, pp. 307, 308. 216 Vested or Contingent. vision of the Revised Statutes.^^ Such a remainder seems to be styled a " vested contingent remainder," '^^ a palpable contradiction, if we resort to the classification of Mr. Fearne and his congeners. As enjoyment in possession is never the test of a vested remainder, but rather the possibility of taking effect in possession if the par- ticular estate were to cease at the instant,'^* it would seem that the power to consume should be regarded as immaterial to the question of vesting.''^ Limitations to the Survivors. It is evident that limitations to the survivor or survivors of two or more persons in being, when such survivorship is not to be determined until the expiration of a prece- dent estate, created at the same time, fall under Mr. Fearne's second class of contingent remainders, even since the Revised Statutes.*" Several rules of construction should be here noticed in this con- nection: (I) It is a rule of testamentary construction in .regard to devises that the time to determine survivorship must be very clearly fixed at the expiration of the precedent estate, or it will be presumed to be referred to the time of the testator's death, as the qrdinary presumption is that the testator, by survivorship, refers to the period of enjoyment in possession and not to the time of vesting.*^ T6i R. S. 724, § 26; § 42, The Real McGillis v. McGillis, 154 id. 532; Prop. Law. Geisse v. Bunce, 23 App. Div. 289; ■JT Roosa V. Harrington, 171 N. Y. Monson v. Paine, 22 Misc. Rep. 639; 341 ; cf. Dana v. Jones, 91 App, Div. Paget v. Melcher, 26 App. Div. 12, 18 ; 496. s. c, 156 N. Y. 399 ; Cox v. Weisner, ''^ Infra, -p. 222. 43 App. Div. 591; Hall v. La France f9C/. § 31, The Real Prop. Law; Engine Co., 158 N. Y. 570; Matter of Dana v. Jones, 91 App. Div. 496, 499. Conolly, 38 Misc. Rep. 533 ; Matter of 8" Carmichael v. Carmichael,4 Keyes, Walker, 39 id. 680; Dougherty v. 346; Kelso v. Lorillard, 85 N. Y. 177; Thompson, 167 N. Y. 472, 487. Purdy V. Hayt, 92 id. 446, 454; Nellis 8I Moore v. Lyons, 25 Wend. 119; V. Nellis, 99 id. soS; Townsend v. Livingston v. Greene, 52 N. Y. 118; Frommer, 125 id. 446, 468, 470; U. S. Embury v. Sheldon, 68 id. 227, 235; Trust Co. V. Roche, 116 id. 120, 131; Stevenson v. Lesley, 70 id. 512; Mat- Moore V. Littel, 41 id. at p. 80; Goe- ter of The N. Y., L. & W. R. Co., bel V. Wolf, 113 id. 405, 412; Matter 105 id. 92; Nelson v. Russell, 135 id. of Allen, 151 id. 243; Hillen v. Iselin, 137, 140; Matter of Tienken, 131 id. 144 id. 36s, 376; cf. Byrnes v. Stil- 391; Washbon v. Cope, 144 id. 287; well, 103 id. 453, 459 ; Pickert v. Win- Stokes v. Weston, 142 id. 433, 436 ; decker, 73 Hun, 476; Lingsweiler v. Sage v. Wheeler, 3 App. Div. 38; Hart, ID App. Div. 156; Tompkins v. Gwyer v. Gwyer, 5 id. 156; Chapman Verplanck, id. S72 ; s. c, 154 N. Y. 634; v. Moulton, 8 id. 64; Wadsworth v. Vested or Contingent. 217 (II) In limitations of a fee on a fee another rule of construc- tion should be noticed: Where a devise is to "A" in fee, and in case of his death without issue to another, the contingency referred to is the death of the first-named devisee during the lifetime of the testator; and if such devisee survive the testator, he takes an ab- solute fee.*^ But this rule applies only where the context of the will contains nothing to show a contrary intention.^^ It is never per- mitted to operate in a case where another point of time is indicated, or when a life estate intervenes.** So a limitation is never construed as an " executory devise " when it may take effect as a remainder.® (III) The general rules of construction it is also to be observed differ in respect of devises and bequests. In regard to the latter, the rule is that words of survivorship are referable to the period of division and enjoyment unless there is a special intent to the con- trary.®® In some cases though distribution is postponed for the benefit of the property, even though the shares are vested.®^ Murray, 29 id. 191, 199 ; afifd., 161 84 Matter of Baer, 147 N. Y. at N. Y. 274 ; Karstens v. Karstens, 29 p. 354 ; Pfister v. Writer, 33 Misc. Rep. App. Div. 229, 236 ; Kelly v. Kelly, 61 701, 706 ; Matter of Cramer, 59 App. N. Y. 47; Quackenboss v. Kingsland, Div. 538, 543; Matter of Gordon, 82 102 id. 128; Curtis v. Waldron, 81 id. 439. App. Div. 351 ; Vanderzee v. Slinger- 85 Manice v. Matiice, 43 N. Y. at p. land, 103 N. Y. 47 ; Colby v. Doty, 158 368 ; supra, p. 198. id. 323, 327 ; Conkie v. Grisson, 24 86 Teed v. Morton, 60 N. Y. 502 ; Misc. Rep. us; Canfield v. Fallon, 26 Vincent v. Newhouse, 83 id. 505; Carr id. 345, 351; Coon v. Coon, 38 id. v. Smith, 25 App. Div. 214; c/. Goebel 693; Matter of Russell, 59 App. Div. v. Wolf, 113 N. Y. 405, 412; Matter of 242, 247; Matter of Cramer, id. Seebeck, 140 id. 241, 246; Matter of S41; affd., 170 N. Y. 271; Ackerman Baer, 147 id. 348; Delafield v. Ship- V. Ackerman, 63 App. Div. 370; Mat- man, 18 Abb. N. C. 291, and note, ter of Watts, 68 id. 357; Matter of p. 297; Shangle v. Hallock, 6 App. Peters, 69 id. 465, 469 ; cf. Goebel v. Div. 55 ; Matter of Embree, 9 id. 602 ; Wolf, 113 N. Y. 40s, 412; Lyons v. affd., 154 N. Y. 778; Clark v. Cam- Weeks, 5S App. Div. 212; s. c, 167 man, 14 App. Div. 127; Monson v. N. Y. 135. Paine, 22 Misc. Rep. 639; Geisse v. 82 Matter of N. Y., L. E. & W. R. Bunce, 23 App. Div. 289; Smith v. Co., 105 N. Y. 92; Stokes v. Weston, Lansing, 24 Misc. Rep. 566, 573; Co- 142 id. 433, 436 ; Vanderzee v. Slinger- gan v. McCabe, 23 id. 739, 743 ; Staples land, 103 id. 47, 55. v. Hawes, 24 id. 47s, 479; Conelly v. . 83 Chapman v. Moulton, 8 App. Div. O'Brien, 40 App. Div. 574. 64; Vanderzee v. Slingerland, 103 N. 87 Smith v. Smith, 31 App. Div. 598; Y. 47, 55; Matter of Crane, 170 id. Matter of Batelle, 24 Misc. Rep. 61, 271, 275. 63 ; Bushnell v. Carpenter, 28 Hun, 19, 218 ■" 'Vested or Contingent. (IV) Where futurity is annexed to the substance of a gift made by will the vesting is suspended; but if the gift is absolute and the time for payment only is postponed, the gift is vested.®^ (V) It is also a rule of construction, that where there is no gift but by a direction to executors or trustees to pay or divide at a future time, the vesting in the beneficiary will not take place until that time arrive.®* But this rule is to be applied in subordination to the testator's intention and is not inflexible.*" It has no application when the postponement of payment is simply for the purpose of letting in an intermediate estate.®^ So if there is a direct gift the rule has no application.*^ (VI) Where final division and distribution is to be made among a class, the benefit of the will must be confined to those persons who come under the category at the time when the distribution or di- vision is directed to be made.*^ But a gift to a class will not be pre- sumed.** A gift to a class is an aggregate gift to a body of persons then uncertain in number,*^ at the time of making the gift.*^ (VII) A gift of personalty may, however, it is said be neither con- 21 ; s. c, 92 N. Y. 270, 273; Robert Rudd v. Cornell, 171 id. 114, 122; V. Corning, 89 id. 227, 240; Kunhardt Schlereth v. Schlereth, 173 id. 444, 449. V. Bradish, 39 Misc. Rep. 103. *" Matter of Young, 145 N. Y. 535, 88 Smith V. Edwards, 88 N. Y. 103 ; 538 ; Matter of Traver, 30 App. Div. Miller v. Gilbert, 144 id. 73; Matter 261, 264; Matter of Elliott, 27 Misc. of Baer, 147 id. 348 ; Matter of Em- Rep. 258 ; Matter of Brown, 154 N. Y. bree, 9 App. Div. 602; Hersee v. 313, 325; Aldridge v. Aldridge, 43 Simpson, 20 id. 100; Weston v. Good- App. Div. 411, 413; Goebel v. Wolff, rich, 12 id. 250; Geisse v. Bunce, 23 113 N. Y. 405, 411; Matter of Tien- id. 289; Paget V. Melcher, 26 id. 12, ken, 131 id. 391; Matter of Russell, 18; Sanson v. Bushnell, 25 Misc. Rep; 59 App. Div. 242, 247; Roosa v. Har- 268, 274 ; Canfield v. Fallon, 26 id. rington, 171 N. Y. 341. 34S. 350 ; Zartman v. Ditmars, 37 App. »! Matter of Hogarty, 62 App. Div. Div. 173, 177; Matter of Elliott, 27 79, 84. Misc. Rep. 258, 261 ; Loder v. Hatfield, 92 Matter of Crane, 164 N. Y. 71, 76. 71 N. Y. 92, 98, 100; Matter of Crane, 93 Matter of Baer, 147 N. Y. 348; 164 id. 71, 76; Rudd V. Cornell, 58 Rudd v. Cornell, 171 id. 114, 122; Bis- App. Div. 207, 212; Quade v. Bertsch, son v. West Shore R. R. Co., 143 id. 6s id. 600, 60s ; Matter of Boyce, 37 125 ; Eckert v. Wilklow, 26 Misc. Rep. Misc. Rep. 146; Matter of Conger, 81 294; Lose v. Miller, 71 App. Div. 195. App. Div. 493, 500. 9* Matter of Russell, 168 N. Y. 169. 89 Shipman v. Rollins, 98 N. Y. 311, 95 Matter of Kimberly, 150 N. Y. 327; Matter of Baer, 147 id. 348, 354; go. Matter of Traver, 30 App. Div. 264 ; 96 Herzog v. Title Guarantee & Matter of Crane, 164 N. Y. 71, 76; Trust Co., 177 N. Y. 86, 97. Vested or Contingent. 219 tingent nor vested, but substitutional if limited in the disjunctive.®^ But such a classification is not consistent with the Revised Statutes. As all future interests in personal property are now subject to the rules relating to future estates in lands,®® the foregoing canons of construction are not without practical importance to the rules relative to vesting of future estates in lands. Heir not Disinherited by Implication. While suggesting rules of con- struction, there is a very important maxim of the old law not to be forgotten, that the heir is not to be disinherited, without an express devise or necessary implication.®® This fundamental rule still ob- tains in modern law.^ Mr. Feame's Fourth Class. We come now to Mr. Fearne's last class of contingent remainders : " (4) Where the person to whom the remainder is limited is not yet ascertained or not yet in being," when the limitation is made ; " as if a lease be made to one to life, remainder to the right heirs of J. S." ^ Here Mr. Fearne adds : " That, as there can be no such person as the right heir of J. S. until the death of J. S. (for nemo est haeres viventis), which may not happen till after the determination of the particular estate by the death of tenant for life, therefore such remainder is contingent." * Leaving the consideration of limitations to persons not in esse for the present, let us consider, first, whether "limitations of remainders to the heirs of a living person as purchasers are still contingent since the Revised Statutes. At common law remainders so limited were, as Mr. Fearne states, contingent, not vested.* In Moore v. Littel,^ under the Revised Statutes, a limitation of a remainder to heirs of a living person was, in so far as living heirs presumptive were concerned, held to create a vested remainder. Moore v. Littel. Although Moore v. Littel has been questioned by the text-writers," it has been since cited with approval many times,'' 87 Westcott V. Higgins, 42 App. Div. 2 Fearne, Conting. Rem. 5. 69, and cases there cited ; Matter of * xd. g. Miller, 161 N. Y. 71, and see cases * Sheridan v. House, 4 Abb. Ct. App. cited in Lyons v. Ostrander, 167 id. Dec. 218, 224; Fearne, Conting. 135; Weyman v. Weyman, 82 App. Rem. 9. Div. 342. 541 N. Y. 66; et cf. Du Bois v. Ray, 98 I. R. S. 777, §§ I, 2; § 2, The Per- 35 id. 162. sonal Property Law. e Supra, p. 211. 99 Jarman's Rule IV. 7 Byrnes v. Stilwell, 103 N. Y. 453 ; 1 Scott V. Guernsey, 48 N. Y. 106; Surdam v. Cornell, 116 id. 305, 309; Brown V. Quintard, 177 N. Y. 75, 84. Losey v. Stanley, 147 id. 560, 567; 220 Vested or Contingent. and it is the law of this State.* It is, however, claimed that Hen- nessy v. Patterson^ distinguishes or limits Moore v. Littel,^'' but on what ground is not apparent, as we shall attempt to show below, in discussing the rules of vested remainders. Moore v. Littel Rightly Decided. Moore v. Littel was rightly de- cided for the following reasons peculiar to the modern law of New York: In that case, one Samuel Jackson, an owner in fee simple, conveyed by deed in 1832 certain freehold premises to John Jack- son " for and during his natural life, and, after his decease, to his heirs and their assigns forever," habendum in nearly the same words. John Jackson then had living children. The Revised Statutes had then abolished the rule in Shelley's case, and the heirs of John Jackson, as it was held, took as purchasers. The court held, in substance, that the living heirs presumptive of John Jackson, dur- ing his life, took vested remainders (under the section above^^), subject to open and let in his after-born children, and that the Re- vised Statutes had taken away the reasons which made such remain- der contingent by the common law, making it now vested.^^ Under this section of the statute this decision seems inevitable. Even at common law the term " heirs " of a living person was sometimes descriptio personarum, so as to enable them to take as purchasers and to vest a remainder,^^ while a remainder to the heir of B. (a living person) was always vested; the heir presumptive took by purchase, as " heir " in the singular number was a word of pur- chase.i* But even if the common-law rule was inflexible, that a remainder to the heirs of a living person was contingent, yet the rule was changed by the revisers of the Statutes of New York in 1830 (I), because of the abolition of the rule in Shelley's case, that the words were words of limitation, where an estate was lim- ited to the ancestor with remainder to his heirs ;i^ (II), be- Campbell v. Stokes, 142 id. 23, 30 ; " i R. S. 723, § 13 ; supra, p. 209. Van Nostrand v. Marvin, 16 App. 12 cf Hawley v. James, 16 Wend. Div. 28, 34. at p. 121. 8 Chinn v. Keith, 4 T. & C. 126 ; 13 i Prest. Est. 349, 369, 370 ; Heard and see Matter of Gordon, 82 App. v. Horton, i Den. 163, and see note to Div. 439. Shelley's Case, Tudor, Lead. Cas. 8 85 N. Y. 91. Real Prop. 615. 10 41 N. Y. 66 ; Chapl. Susp. Alien., " Sug. Gilb. Uses, 40, 46. § 49 ; Minot v. Minot, 17 App. Div. 15 i R. S. 725, § 28 ; The Real Prop. 521. Law, art. II, § 44. Vested or Contingent. 221 cause the rule no longer obtains that the cessation of the precedent estate before the vesting of a remainder destroys the latter.^^ Had it not been for the words " after his decease " in the limitation to John Jackson, it is apprehended, that the decision in Moore v. Littel would, after the Revised Statutes, never have been questioned by the most ardent controversialist. Moore v. Littel. Mr. Fearne attributes the former contingent char- acter of such a limitation to the heirs of a living person, to the fact that the particular estate might cease before the heirs of a living person were ascertained.^^ Under the Revised Statutes this cessa- tion would be inconsequential, or, in other words, not a legal con- tingency; and even by the common law, if a remainder was so limited as to depend on the regular determination of the particular estate, irrespective of a contingency expressed in the limitation, the remainder was vested.^® In Moore v. Littel the remainder was to take effect on the deiath of John Jackson, a certain event, as there was no longer, under the Revised Statutes, any contingency about the regular expiration of the particular life estate of John Jackson ; he could not bar it or defeat it. Therefore, even according to Fearne, the remainder to the living children of Jackson had become, under the Revised Statutes, vested, if " heirs of a living person " was ever descriptio personce}^ Again, another reason for the de- cision in Moore v. Littel: After the abolition of primogeniture in this State, " heirs " became the equivalent of " heir " at common law^" by our Statute of Descents; and, for the same reason, de- noted heirs presumptive, both male and female. The term thus became descriptive of the living persons, such as children, issue, and the like, intended to take the estate or inheritance, and ceased to refer wholly to an indefinite succession of persons, even although the unborn issue might be let into the succession as we shall see below. It is, however, to be observed that the limitation to the heirs of a liv- 16 I R. S. 724, §§ 32, 34; The Real '^^ Wh&a" heirs " novf descriptio per Prop. Law, art. II, §§ 47, 48. See in- sonce: vide Heath v. Hewitt, 127 N. Y. teresting accounts of the case of 166 ; Hillen v. Iselin, 144 id. at pp. 374, Moore v. Littel, by Mr. Chaplin, 1 Co- 375, and cf. lUman v. Davis, 95 id. 17; lumbia Law Rev. 279, and by Mr. Ev- Montignani v. Blade, 145 id. iii. erett Wheeler, ibid, p. 347. 20 At common law remainder to the ^'^ Supra, p. 219. heir (singular) of B. was vested; su- 18 Fearne, Conting. Rem. 19, 215, pra, p. 220. 216, 217, 223. 222 Vested or Contingent. ing person in Moore v. Littel was contained in a deed and not in a devise. In Campbell v. Rawdon^^ it had been intimated that a grant of an estate to the heirs of a living person was descriptio per- sonce in a devise, but not in a deed, but this distinction exists no longer in this State.^ Preston and the Revised Statutes. The revisers of the statutes in drawing section 13 (i R. S. 723),^ defining the terms "vested" and " contingent," had particular reference to Mr. Preston's writ- ings.^ He had said: "Every interest which is limited to com- mence, and is capable of commencing on the regular determination of the prior particular estate, at whatever time the particular estate may determine, is in point of law a vested estate ; and the universal criterion for distinguishing a contingent interest from a vested estate is that a contingent interest cannot take effect immediately, even though the former estate were determined; while a vested estate may take effect immediately, whenever the particular estate shall determine." ^ In the light of this distinction, after the aboli- tion of the rule in Shelley's case, and the other reforms instituted by the Revised Statutes, the decision in Moore v. Littel seems inevitable. Real Distinction between Vested and Contingent. In Moore v. Littel the living children of John Jackson might die without issue before their father, and they might never enjoy the remainder in posses- sion, but such is not the uncertainty which makes a remainder con- tingent. It is the capacity of taking effect in possession if the particular estate determine which always distinguishes a vested from a contingent remainder.^^ So the vested remainder in the living children of John Jackson might open and let in after-born children without disturbing the vested quality of the estate f for, once vested, 21 17 N. Y. 412, 416, 417. Real Prop. Law, art. II, § 30 ; Van 22 Heath v. Hewitt, 127 N. Y. 166; Axte v. Fisher, 117 N. Y. 401, 403; Browne v. Murdock, 12 Abb. N. C. Matter of Embree, 9 App. Div. 602; 360; Matter of Embree, 9 App. Div. affd., 154 N. Y. 778; Lawrence v. Bay- 602; aflfd., 154 N. Y. 778. ard, 7 Paige, 70, 75; Mead v. Mitch- 23 Supra, p. 209. ell, 17 N. Y. 210, 213 ; Surdam v. Cor- 2* Before that time reprinted in New nell, 116 id. 305, 309; Hotaling v. York and Philadelphia. Marsh, 132 id. 29; Matter of Traver, 25 I Prest. Abst. 108. 161 id. 54, 58. 26 Fearne, Conting. Rem, 216; i ^rpgarne, Conting. Rem, 313, 314; Prest. Est. 77; i R, S. 723, § 13; The Nodine v. Greenfield, 7 Paige, S44; Vested or Contingent. 223 the same remainder, as a partible whole, could not become contin- gent.^^ The right of the after-born issue to so take was not a con- tingent estate at all, but a mere possibility not disturbing the vested quality of the inheritance. Construction Favors Vesting. It may be argued that this construc- tion makes nearly all remainders vested; but, as it was said in Moore v. Littel,^* this is no objection. Courts always prefer to construe estates as vested rather than contingent,^" and such was the rule by the common law.^-^ At common-law estates were always so construed, if possible, as to vest at the earliest possible moment. Thus in settlements where the question was, whether the persons taking were those in existence at the date of the settlement or those in existence at the expiration of the prior estates limited, the construction was in favor of the former.^^ One reason that animated the courts formerly to declare estates vested, rather than contingent, was that vested estates could be alienated more freely than contingent estates, which could be alienated only in equity by way of estoppel.*^ So estates vested could be more readily aliened.^* Both of these reasons for holding remainders vested have, however, now disappeared by the reforms instituted Wilber v. Wilber, 45 App. Div. 158, worth v. Murray, 29 id. 191, 199; 162, 16s N. Y. 451 ; Carpenter v. Miller v. Von Schwarzenstein, 51 id. Schermerhorn, 2 Barb. Ch. 314 ; Haug 18, 22 ; Nelson v. Russell, 135 N. Y. V. Schumaker, 166 N. Y. 506; Lyons 137; Hears v. Simpson, 154 id. 496, v.- Ostrander, 167 id. 135; U. S. Trust 500; Corse v. Chapman, 153 id. 466; Co. V. Wheeler, 73 App. Div. 289. Matter of Russell, 168 id. 169; Lewis 28 I Prest. Est. 66. v. Howe, 174 id. 340, 346. 29 At p. 79. 31 Vide Smith's Edition of Fearne, 30 Moore v. Lyons, 25 Wend, at p. Conting. Rem. vol. 2, p. 73, § 200; 126 ; Moore v. Littel, 41 N. Y. at p. sometimes cited " Smith's Ex. Int." 79 ; Manice v. Manice, 43 id. at p. 368 ; 32 3 Davidson, Conv. 268, 269 ; Livingston v. Greene, 52 id. 118, 123; Dougherty v. Thompson, 167 N. Y. McKinstry v. Sanders, 2 S. C. 181 ; 58 472, 483. N. Y. 662 ; Embury v. Sheldon, 68 id. 33 Hennessy v. Patterson, 85 N. Y. 227, 236; Smith V. Edwards, 88 id. at 99; vide infra, under § 49, The Real p. 109 ; Byrnes v. Stilwell, 103 id. 453, Prop. Law. 460; Stokes V. Weston, 142 id. 433; 34 Livingston v. Greene, 52 N. Y. at Matter of Merriman, 91 Hun, 120; p. 123, but observe that contingent Bunyan v. Pearson, 8 App. Div. 84; remainders could also be destroyed Sage V. Wheeler, 3 App. 38; Minot v. by the tenant of the freehold. Supra, Minot, 17 App. Div. 521, 526; Wads- p. 42; infra, p. 229. 224 Vested or Contingent. by the Revised Statutes f^ but the courts still adhere to the rule of construction which favors vesting,^^ so as to prevent disinheriting the issue of remaindermen,^'' and to avoid uncertainty as to titles, and make estates permanent.^® A Rule of Property. It is now the established doctrine in this State, and a rule of property, that under a limitation of a life estate to "A.," remainder to his heirs, the living heirs presump- tive of " A.," if not aliens,^^ take in his lifetime a vested remain- der,*" but defeasible*^ and subject to open and let in after-born chil- dren,*^ including those posthumous;*^ but this is not equivalent to the statement, as we shall show below, that such vested remainders do not now tend to a perpetuity under the Revised Statutes. Moore v. Littel not Questioned. It has been intimated** that Hen- nessy v. Patterson*^ shakes the authority of Moore v. Littel.*^ It is not easy to see why. There is in the case of Hennessy v. Patterson a purely hypothetical construction of a devise adjudged by those rules of the common law then entirely superseded, but as such 35 § § 47, 48, The Real Prop. Law. Div. 28, 34 ; Dougherty v. Thompson, 36 Livingston v. Greene, 52 N. Y. at 167 N. Y. 472, 487 ; Manhattan Real p. 123 ; Moore v. Littel, 41 id. at p. 79 ; Estate Assn. v. Cudlipp, 80 App. Div. Stokes V. Weston, 142 id. 433, et ut 532, 535. supra; Connelly v. O'Brien, 166 id. ** Moore v. Littel, 41 N. Y. 66; 406 ; Hersee v. Simpson, 154 id. 496 ; House v. Jackson, 50 id. 161 ; Mon- Cogan V. McCabe, 23 Misc. Rep. 739, arque v. Monarque, 80 id. 320; Byrnes 742; Canfield v. Fallon, 43 App. Div. v. Stilwell, 103 id. 453; Surdam v. S6i, 568; Haug v. Schumaker, 166 Cornell, 116 id. 305; Nelson v. Rus- N. Y. 506, 516; Dougherty v. Thomp- sell, 135 id. 137; Campbell v. Stokes, son, 167 id. 472, 483 ; Manhattan Real 142 id. 23 ; Tompkins v. Verplanck, Estate Assn. v. Cudlipp, 80 App. Div. 10 App. Div. 572, 154 N. Y. 634; 532, 534- Minot v. Minot, 17 App. Div. 521 ; 37 Lewis v. Howe, 174 N. Y. 340, Paget v. Melcher, 26 id. 12; Town- 346. send v. Frommer, 125 N. Y. 466, 468. 38 Byrnes v. Stilwell, 103 N. Y. 460; *3 i R. S. 725, § 30; The Real Prop. Du Bois V. Ray, 35 id. 162; Bowditch Law, § 46, and see below under this v. Ayrault, 132 id. 222, 228; Murtha section. V. Wilcox, 47 App. Div. 526, 529; Mat- ** Chapl. Susp. Alien., § 51; Minot ter of Russell, 168 N. Y. 169; Matter v. Minot, 17 App. Div. 521, 526; Wash- of Howland, 37 Misc. Rep. 114, 119. burn. Real Prop. (4th ed.) 229; i Co- 39McGilHs V. McGillis, 11 App. Div. lumbia Law Rev. 279, 347; Manhattan 359, 362 ; Wadsworth v. Murray, 29 id. Real Estate Assn. v. Cudlipp, 80 App. 191- Div. 532, 536. *o Moore v. Littel, 41 N. Y. 66. ^ 85 N. Y. 91. *1 Van Nostrand v. Marvin, 10 App. *6 41 n y. 66. Vested or Contingent. 225 hypothetical construction is based on the common law without the application of the rule in Shelley's case (a very diffi- cult resolution), this construction is purely obiter.*'' In Hennessy V. Patterson, the real case was .this : A person presumably inops consilii, as the will is most inartificial, devised to his wife for life (in lieu of dower) for her own Denefit and that of their unmarried daughter, and in case the wife married a second time, or acted con- trary to the executors' wishes, then the executors " to have power to have the control of the property." If the daughter married and died leaving issue, the property to be theirs, " share and share alike," and not to go to her husband. If the daughter died without leaving any issue, remainder to testator's nephew. The widow died in 1874 ; the daughter then married H. The nephew died in 1876, and the daughter died in 1878, leaving no issue her surviving. In an action of partition between the heirs of the nephew H., it was adjudged that the nephew H. took a contingent remainder de- scendible, and that on the death of the daughter, his heirs were vested in possession. The case is a very different one from Moore V. Littel, which would have been " life estate to the wife, remainder to her heirs," some of whom were in esse. Here the remainder was to the unborn heirs of a second life tenant, and failing heirs, re- mainder to the testator's nephew in fee simple. Now, here was a re- mainder substituted for a contingent remainder, which never took effect, a limitation permissible under the Revised Statutes.*^ Since the Revised Statutes, such a future estate is descendible.*^ The adjudication does not seem to be in conflict with Moore v. Littel, nor is it so regarded, for, as shown above, Moore v. Littel has been since frequently cited with approval by the Court of Appeals.^** It may be observed that at common law a remainder might be vested, although a contingent remainder to persons not in esse intervened.^* This principle does not, however, shake the authority of Moore v. *^ E. g,, it is by no means certain at *^ i R. S. 723, § 16. common law that a remainder could ■*9 i R. S. 725, § 35. not be limited on a determinable fee ^ Supra, p. 219. (as said at p. 98 by Finch, J.) ; see ^^ Fearne, Conting. Rem. 222 et seq.; case of Bagshaw in Hargrave's Col- Wadsworth v. Murray, 29 App. Div. lectanea luridica, I, 383. Finch, J., 191, might have been determined on quotes Lalor, but the latter took his this principle, statement from the opinion, 5 Paige, at pp. 46s, 466; vide supra, p. 160. 15 226 Vested or Contingent. Littel. If Hennessy v. Patterson shakes the authority of any part of the opinion in Moore v. Littel, it must be that part which refers to the descent of a vested estate in remainder in a case where the vested remainderman dies before the determination of the prece- dent estate; but the discrepancy is on that point only.^^ Vested Remainders Alienable as a General Rule. As a general rule vested remainders are alienable and not obnoxious to the Rule against a perpetuity, although their limitations may violate the rules against successive life estates.^* But not all vested remainders are since Moore v. Littel alienable. All Vested Remainders not Alienable. The wisdom of the determina- tion, that a remainder to the heirs of a living person is vested as to those heirs presumptive in esse, is somewhat shaken by the anomaly that, as it is subject to open** and let in " after-born issue," it is not like other vested remainders, freely alienable.^® Those who are living of the remaindermen cannot cut off or affect the title to the land of the unborn by any conveyance in pais^^ although, in a litigation, the living remaindermen may stand for and represent the inheritance as a whole.*'' To some extent these cases last cited, therefore, contradict the adjudications that all vested estates are alienable.** Assignees in Bankruptcy. Assignees in bankruptcy take vested,*^ but not contingent, remainders of bankrupt.^" Seisin of Vested Remainder for Purposes of Dower and Descent. So al- though a remainder expectant on an estate for life is vested, it does not give such seisin to a remainderman as entitles his widow to 52 See below under § 49, and Man- 10, 17; cf. Tompkins v. Verplanck, 10 hattan Real Estate Assn. v. Cudlipp, App. Div. p. 578, 154 N. Y. 634. 80 App. Div. 532, 536. S7 Kent v. Church of St. Michael, *3§§ 33, 34, 3S, The Real Prop. 136 N. Y. 10, 17; Ebling v. Dreyer, Law; Matter of Ryder, 41 App. Div. 149 id. 460; cf. Boskowitz v. Held, 15 247, 252; Purdy V. Hayt, 92 N. Y. 446. App. Div. 306, 312; Kirk v. Kirk, 137 B^Herriot v. Prime, 155 N. Y. 5. N. Y. 510, 516; Smith v. Secor, 31 55 Mead v. Mitchell, 17 N. Y. 210, App, Div. 103 ; Rhodes v. Caswell, 41 213; Wilber v. Wilber, 45 App. Div. id. 229, 232; Adams v. Backer, 29 158; 165 N. Y. 451; Dougherty v. Misc. Rep. 93. Thompson, 167 N. Y. 472, 487. 58 Infra, pp. 248, 262. osKilpatrick v. Barron, 125 N. Y. 59 /„ yg Haslett, 116 Fed. Rep. 680. 751; Harris v. Strodl, 132 id. 392; ^o /„ ^^ fjoj^ley, loi Fed. Rep. 233 ; Kent V. Church of St. Michael, 136 id. In re Gardner, 26 id. 670 ; In re Ehle, 6 A. B. R. 476. Vested or Contingent. 227 dower, if he die before the estate for life expires.®^ But yet it confers sufficient seisin to serve for the purposes of descent under existing law.^^ Mr. Fearne's Fourth Class Again. Let us now consider the residue of Mr. Fearne's fourth class of contingent remainders, or those remainders limited solely to persons not in being f^ for such remain- ders are permissible under the statutes of this State. ^* There can be no doubt that such remain contingent, for no more doubtful contingency can exist than that a person not conceived may yet be born. Under the terms of any statute they should remain contin- gent,®^ as at common law.®® In the case of Moore v. Littel, if it had happened that John Jackson had no children whatever then living, and the limitation had been to the heirs of his body only, or to his issue only, the remainder would have been unquestionably contin- gent, although the instant he had heirs of his body the remainder would have been vested;®^ especially since the conversion of estates tail into fees simple, the abolition of the rule in Shelley's case and our statutes of partible inheritance.®* Present Application of Mr. Fearne's Classification. From this present examination we may perceive that only Mr. Fearne's second and fourth classes of contingent remainders remain contingent estates under the Revised Statutes and the present statute, and that of his fourth class one-half, or those limitations after a life estate of re- 61 Bushman v. Hudsoti, 20 Wend. s* Manice v. Manice, 43 N. Y. 303, 53; Durando v. Duranoo, 23 N. Y. 374; Purdy v. Hayt, 92 id. 446, 455; 331; House V. Jackson, 50 id. 161, 16s; McGilHs v. McGillis, 11 App. Div. Stewart v. Crysler, 52 App. Div. 597. 359, 362, 154 N. Y. 532. 62 Hennessy v. Patterson, 85 N. Y. ^5 Supra, § 30 ; Hennessy v. Patter- 91, 99 ; Carpenter v. Schermerhorn, 2 son, 85 N. Y. 91 ; Purdy v. Hayt, 92 Barb. Ch. 314, 320; sed. cf. Moore v. id. 446, 454; Axte v. Fisher, 117 id. at Littel, 41 N. Y. 66 (where it is said p. 403; Losey v. Stanley, 147 id. 560, a vested remainder may divest by the 567; McGillis v. McGillis, 11 App. Div. death of remainderman), and Bing- 359, 362, 154 N. Y. 532; Hall v. La ham, Descents ("of vested remain- France Fire Engine Co., 158 id. 570; ders"), 70, 115. The distinction be- Bindrim v. Ullrich, 64 App. Div. 444, tween the facts necessary to consti- 449. tute succession by descent and by pur- ^6 pg^rne, Conting. Rem. 217; i chase was often very marked in the Prest. Abst. 112; Strahan, Prop. 150; common law. Cf. Challis, III, 126, as Jackson v. Walters, 86 App. Div. 470. to posthumous children. 6^ Fearne, Conting. Rem. 314. ^^ Supra, p. 219. 88 Ui supra, under this section. 228 Vested or Contingent. mainders to the presumptive " heirs " of a hving person, have ceased to be contingent. Revisers' Object in Defining " Vested " and " Contingent." The object of the revisers in making a statutory distinction between vested and contingent must again be noticed, for, unless it had some definite purpose, it better not have been put in the statute.** They doubtless conceived that it had some relation to their revised rule against per- petuities. But, in addition to the rule against perpetuities, the defi- nition has another relation. Contingencies were not originally the basis of limitations ;''* afterward they were recognized within cer- tain limits ;^^ the classes of contingencies were fully grouped, and the nature of the contingencies tolerated by law were defined in cases. They could not be illegal events, too remote, repugnant to a rule of law, contrariant in themselves or inconsistent with the qual- ity or nature of the preceding estates.''^ But most contingent re- mainders at common law had little tendency to create perpetuities,'^* for the rules touching legal limitations in themselves restrained re- mainders within reasonable limits, and contingent remainders could be freely barred. The Revised Statutes, however, made remainders take effect contrary to the common law and rendered contingent estates indestructible and unbarrable by the immediate tenant, al- though they made all future or contingent estates descendible, de- visable, and alienable wherever possible.''* Nevertheless, some con- tingent remainders were ex necessitate rei inalienable. There was every reason, therefore, why the revisers should think it expedient to define " contingent," for such contingent remainders as were in- alienable certainly tended to a perpetuity under the Revised Stat- utes. In addition to this reason, the terms " vested " and " con- tingent " were applied to those estates raised formerly by way of use or devise,''^ and future uses and executory devises were always conceded to tend to perpetuities. As under the Revised Statutes " future " or " expectant " estates involved all such future and 89 The revisers in their notes an- ''^ Supra, and see notes on § 32, Bounce the distinction between vested " The Real Prop. Law," infra. and contingent has reference to their ''* i R. S. 725, § 35 ; " The Real rule against perpetuities. See note to Prop. Law," art. II, § 49; Dodge v. I R. S. 723, § IS, Appendix II, infra. Stevens, 105 N. Y. 585, 588. ''o Supra, pp. 22, 23, 210. '?s Fearne, Conting. Rem. i ; i Prest. '''^ Supra, p. 210. Est. 65, 66. ''^ Fearne, Conting. Rem. chap. 2. Vested or Contingent. 229 contingent estates as were called uses and executory devises, the terms " vested " and " contingent " remained desirable ; for, such contingent estates still tended to perpetuities.'^^ Substitutional Remainders. It is said that a remainder limited in the disjunctive may be regarded as neither vested, nor contingent, but substitutional;" but it would seem as if this were a resort to the classification of some other system, such as the Code Civil of France. The question is, are the substituted or alternative remainders ■' vested " or " contingent " under the Revised Statutes and this act? Reference to the Rule against Perpetuities, or Suspending the Power of Alienation. As under the Revised Statutes''^ and " The Real Prop- erty Law," ''^ every contingent estate (except those to persons not in being) is made alienable, it follows that only those contingent limitations which suspend the power of alienation now tend to per- petuities.*" Whenever the contingent estate is limited on such con- tingencies as may be immediately " released " or extinguished by persons in being, and an absolute fee in possession thus conveyed, it would seem to follow that such contingent estate cannot be said any longer to tend to a perpetuity. We have seen that, by the com- mon law, contingent remainders were not within the " rule against a perpetuity," and yet, at common law, contingent remainders could be assigned only in equity by way of estoppel;*^ they were, how- ever, devisable finally*^ and descendible.®^ But the principal reason that contingent remainders did not, at common law, fall within the rule against a perpetuity, was that they might be freely barred or destroyed.®* As under the Revised Statutes contingent remainders ''s Lawrence v. Bayard, 7 Paige, 75, Cruise Dig., tit. 16, chap. 8, §§ 20, 22; 76; Vanderpoel v. Loew, 112 N. Y. Hennessy v. Patterson, 85 N. Y. 91, 167, 186; Williams v. Montgomery, 99; Co. Litt. 214a; Jackson v. Wal- 148 id. at p. 526; Sir Edward Sugden dron, 13 Wend. 178, 192; 2 White & in Cole v. Sewell, 4 Dr. & W. at p. 28. Tudor, Lead. Cas. in Eq. 836. '^'^ Lyons v. Ostrander, 167 N. Y. ®2 Cruise Dig., tit. 16, chap. 8, § 23 ; 13s; supra, p. 219. Fearne, Conting. Rem. 366. '8 I R. S. 72s, § 35. 83 Cruise Dig., tit. 16, chap. 8, §§ 14, ™ The Real Prop. Law, § 49, infra. 15, 16 ; Fearne, Conting. Rem. 364. 80 Moore v. Littel, 41 N. Y. at p. 85 ; ** Lewis, Perp. 128, 132, 134 ; see McGillis V. McGillis, 11 App. Div. at notes on § 32, infra; 2 Washb. Real p. 362; 154 N. Y. 532; and see i Col. Prop, (ist ed.) 235; 2 Prest. Abst. 114, Law Rev. 234, an argument to same 148; Hawley v. James, 16 Wend, at effect. p. 121. *i Fearne, Conting. Rem. 365, 366 ; 230 Vested or Contingent. cannot be barred or defeated by the action of the tenant of the par- ticular estate, it would seem that such estates as are not able imme- diately to be barred by the contingent remaindermen themselves, must be within the spirit of the existing rule against a perpetuity .^^ Effect of Peremptory Power of Sale. A peremptory power of sale which may defeat a remainder may, it is said, be influential in the construction of a devise of a future estate and determine whether Or not a remainder is vested or contingent;** although the better opinion would seem to be that the existence of the power is imma- terial to this question, as vested estates may be divested in various ways, e. g., by a birth or by the existence of a power of sale or ap- pointment.*'' What Contingent Remainders Suspend the Power of Alienation. It re- mains to consider, briefly, what contingent remainders now fall within the rule against perpetuities. Is it not alone that class of contingent remainders which are dubious, not because of the events upon which they are limited, but because of the uncertainty of the persons to whom the remainder is limited ? ^ This, stated affirma- tively, would then be equivalent to the proposition, that those con- tingent remainders which i cannot be released, assigned at law or inherited, alone tend to a perpetuity under the Revised Statutes and " The Real Property Law " of this State. In that event, strictly, only remainders to persons not in esse, or a settlement of a future estate on aliens, now tend to a perpetuity.*® But the entire subject of perpetuities belongs to the remarks on the thirty-second section of this act, and need not be pursued at this point. Vested Kemainders May he Sold on Execution. Vested remainders and estates may be reached and sold by judgment creditors by simple 85 Du Bois V. Ray, 35 N. Y. 162, 164; S'' Fearne, Conting. Rem. 226 et seq. Radley v. Kuhn, 97 id. at p. 35; *8 Moore v. Littel, 41 N. Y. at pp. cf. Challis, 161, as to contingent re- 83, 84. mainders protected by statute, being 89 cf. Chapl. Exp. Trusts & Powers, within the old rule. § 386; Booth v. Baptist Church, 126 80 Dana v. Murray, 122 N. Y. 604, N. Y. 215, 236; Cruikshank v, Home 613; Matter of Will of Butterfield, for the Friendless, 113 id. 337; Mc- 133 id. 473; cf. Matter of Brown, Gillis v. McGillis, 11 App. Div. 359, IS4 id. 313, 324; Dana v. Jones, 91 362; i Col. Law Rev. at p. 234; s. c. App. Div. 496, 499, and text under reversed, 134 N. Y. 532, i Col. Law § 31, The Real Prop. Law, infra. Rev. at p. 234. Vested or Contingent. 231 execution,®" or by an assignee in bankruptcy ,^^ but not so the estates called contingent remainders.*^ But those vested remainders which are so limited as to open and let in " after-born issue " may not be sold on execution so as to cut off the " after-born." ^ To some extent, therefore, a vested remainder subject to open and let in after-born children now suspends alienation.®* Vested Remainders Open to Let In. At common law, a remainder once vested in interest could not be divested except by the act of the remainderman himself.®^ A distinction was, however, made be- tween the cases where the remainder was acquired by purchase or by descent. If acquired by purchase, the remainder never divested on the birth and entry of a nearer heir during the continuance of a particular estate. It was otherwise where the remainder vested in some one by descent.®^ Posthumous children could not take by way of contingent remainder if the particular estate determined before the birth of such child.®^ These common-law rules seem to have been first broken in on in the case of limitations of uses; it being held that a vested remainder limited by way of use could be di- vested by the birth of issue during the existence of the particular estate.®* The strict rule of the feudal or common law was also broken in on in the case of a devise of a remainder ;®® it being con- strued in favor of a posthumous child as an executory devise and the remainder allowed to vest in the person next entitled until the birth of such child, when the remainder divested and vested in the child.^ The statute lo and ii WiUiam III, chapter i6, finally al- lowed posthumous children to take by way of remainder, even 90 Nichols V. Levy, s Wall. 433 ; 9* Cf. Hawley v. James, 16 Wend, at Sheridan v. House, 4 Abb. Ct. App. p. 120 ; Wilber v. Wilber, 45 App. Div. Dec. 218; cf. Monarque v. Monarque, 158, 160, 165 N. Y. 451. 80 N. Y. 320, 326, as to partition sale. ®5 Watkins, Desc. 134, 137 ; Strahan, 91 Smith V. Scholtz, 68 N. Y. 41. Prop. 149. 92 Jackson v. Middleton, 52 Barb. 9 ; 90 Watkins, Desc. 133, 137, and cases Striker v. Mott, 28 N. Y. 82; cf. cited. Woodgate v. Fleet, 44 id. i, as to con- 97 Challis, iii, 126, 159. tingent reversion. 98 Cruise Dig., tit. 16, chap, s, §§ 16, 93 Monarque v. Monarque, 89 N. Y. 17, and cases cited. 320; Sheridan v. House, 43 id. 569; 99 Reeve v. Long, i Salk. 228. Kent V. Church of St. Michael, 136 1 Steadfast ex dem., etc. v. H. id. 10; Smith v. Secor, 31 App. Div. Nicoll, 3 Johns. Cas. 18. 103; In re Wetmore, 102 Fed. Rep. 290. 232 Vested or Contingent. where the limitation was by deed. This statute was re-enacted in New York in 1774,^ and revised in 1786.* It was also put in the Revised Statutes and this act.* At the present day in New York vested remainders frequently open to let in after-born issue during the continuance of the particular estate,^ and a vested remainder may now be wholly divested by the death of the remainderman be- fore the termination of the precedent estate.* It seems obvious that this decision depends on the particular language of the limitation of the remainder. It generally refers to those statutory remainders which would formerly have taken effect as devises or as uses, and not to the common-law remainders ; for at common law a vested remain- der did not divest by the death of remainderman during the continua- tion of the particular or precedent estate.'' Once vested, as stated above, a remainder could not be divested unless there be a clear in- tention to be collected from the language of the instrument limiting the remainder.* Analogy between Gifts to a Class and Vested Remainders which Open. The analogy between vested remainders which divest themselves and gifts to a class (where those competent to take at the period of distribution succeed to the shares of those incompetent to take by reason of death, alienage, or other disability^) is apparent. Remainders Limited on Estates which Never Arise. Where a remain- der is limited on a life estate and the life estate fails, it is said that the remainder fails also.-'" Yet, as a rule, at common law, if a pre- 2 Chap. 2, Laws of 1774. 289 ; cf. Hennessy v. Patterson, 85 3 I J. & V. 247. N. Y. at p. 99 ; Bing. Desc, chap. 4. * I R. S. 725, § 30; The Real Prop. § 2, concerning the descendibility of a Law, § 46. vested remainder. ^ Supra, this section, p. 226; Bin- fWatkins, Desc. 3; supra, p. 231; drim v. Ullrich, 64 App. Div. 444, 448; Fearne, Conting. Rem. (3d ed.) 286. Dougherty v. Thompson, 167 N. Y. 472, 8 Driver v. Frank, 3 M. & S. 25 ; 6 487 ; Huber v. Case, 93 App. Div. 479. Price, 41 ; Strahan, Prop. 149. 6 Moore v. Littel, 41 N. Y. 66; » Van Courtland v. Nevers, 1 1 N. Y. House V. Jackson, 50 id. 161, 165; Supp. 148, 153, citing Downing v. Lingsweiler v. Hart, 10 App. Div. at Marshall, 23 N. Y. 366; Matter of p. 165 ; Herriot v. Prime, 155 N. Y. 5 ; Cramer, 170 id. 271. Campbell v. Stokes, 142 id. 23, 30; 10 This was so at common law (2 Kernochan v. Marshall, 165 id. 472, Black. Comm. 167), and the same 478; Matter of Connolly, 38 Misc. statement is made generally of re- Rep. S33 ; Dougherty v. Thompson, mainders under' the Revised Statutes 167 N. Y. 472, 487; United States by Daniels, J., in Schettler v. Smith, Trust Co. v. Wheeler, 73 App. Div. 41 N. Y. at p. 347; sed cf. Purdy v. Vested or Contingent. 233 ceding estate never arose, the next limitation took effect; the prior estate being regarded only as a limitation, and not as a condition,^^ and so the law remains since the Revised Statutes.^^ Because a remainder is limited on an estate in trust, which fails, the remainder need not fail.^* It must be remembered in this connection that since the Statutes of Uses and Wills whenever in a devise a condition is annexed to a preceding estate, and upon the breach or non-performance the estate is limited over, the condition operates as a limitation and is now supported as a conditional limitation.^* Thus the old common law of remainders now rarely applies to limitations of future estates after precedent estates which are void or do not arise. It has been pointed out that the term " remainder " is now nomen generalissi- mum and includes former future uses and executory interests.^^ Contingent Semaindermen not Bound by Conveyances of Others. It is well settled that remaindermen are not bound by a conveyance un- less they are parties.^^ This is but another way of stating that con- tingent remainders cannot be now barred or defeated except in the mode provided in their creation or by the act of the contingent re- maindermen themselves.^^ Hayt, 92 id. at p. 458; Woodruflf v. Christian Home v. French, 178 U. S. Cook, 61 id. 638; Downing v. Mar- 401, 414. shall, 23 id. 366 ; Bailey v. Bailey, 28 1* McLean v. Freeman, 70 N. Y. 81 ; Hun, 603, 614; McLean v. Freeman, Kalish v. Kalish, 166 id. 368; cf. 70 N. Y. 81, 85 ; Cochrane v. Schell, Irving v. De Kay, 9 Paige, 523 ; 140 id. S16, 526; Kalish v. Kalish, 166 Amory v. Lord, 9 N. Y. 403, 419; id. 368, 379; Matter of Lawrence, 37 Schlereth v. Schlereth, 73 App. Div. Misc. Rep. 702, and p. 204, supra, 283. under § 28, The Real Prop. Law. It 1* Fearne, Conting. Rem. 272, 381, is, however, apprehended that this note ; Goodeve, Real Prop. 191 ; Wil- rule applies only to contingent re- Hams v. Jones, 166 N. Y. 522, 536; mainders, not to vested remainders. Newell v. Nicholl, 12 Hun, 604; affd.. Vide note 6 to 2 Black. Comm. 167. 75 N. Y. 78 ; Young Women's Chris- 11 Norris v. Beyea, 13 N. Y. at tian Home v. French, 187 U. S. 401, p. 287; Mowatt v. Carew, 7 Paige, 414. 328; Manice v. Manice, 43 N. Y. at ^^ Supra, pp. 202, 203. p. 383 ; McLean v. Freeman, 70 id. 81, w Campbell v. Stokes, 142 N. Y. 23, 8s ; Williams v. Jones, 166 id. 522, 30 ; Paget v. Melcher, 42 App. Div. 76 ; S36; cf. Banker v. Janes, i App. Div. supra, p. 226; et infra, under § 46, 272. " How far after-born children bound 12 Williams v. Jones, 166 N. Y. 522; by representation." 536; Newell v. Nicholl, 12 Hun, 604; " §§ 47, 48, The Real Prop. Law. affd., 7S N. Y. 78; Young Women's 234 Power of Appointment. § 31. Power of appointment not to prevent vesting. — The ex- istence of an unexecuted power of appointment does not prevent the vesting of a future estate, limited in default of the execution of the power. Comment on Section 31. This section is new.^* It can refer only to powers which have not been extinguished or merged. It will be readily observed that the language of this section does not conform to the scheme of the Revised Statutes, which took no note of powers of appointment. All powers were declared by that revision to be " general " or " special," and " beneficial " or " in trust." ^* The above section^" now recurs to a common-law classification. Never- theless, as nearly all powers, even at the present day, must be either powers to appoint new uses and estates, or else powers to revoke subsisting uses and estates, this section is not wholly inapt. But powers of sale in trust were not powers of appointment.^^ This Section Declaratory. It will be also observed that the language of the principal section is declaratory and negative where it is to the effect that " the existence of the power does not prevent the vest- ing.'' The real question before the enactment of this section was whether interests limited subject to the operation of a power of ap- pointment, or in default of an appointment, are vested or contin- gent, until the execution or determination of the power. At com- mon law this was a question of difficulty much discussed from Lovie's case^ down.^^ The opinion intimated by Mr. Fearne, " that where estates are subjected to a general power of appointment in the first taker, with remainders over in default of such appointment, the power does not suspend the remainder from vesting, is confirmed by the opinions, first of the Master of the Rolls, and afterward of the Lord Chancellor in Manndrell v. Manndrell,^* and in Sugden's Treatise on Powers.^ The Commissioners of Statutory Revision say of this section,^^ " New. It has seemed to the revisers that the doubts on this sub- is Report of the Commissioners of 24 7 yes_ ji-_ 567 ; 10 id. 246. Statutory Revision, Appendix I. 25 Chap, 2, § 4 ; referred to in Mr. 19 I R. S. 732, § 76 ; The Real Prop. Butler's note to Fearne, Conting. Rem. Law, § 113, infra. 233; Fearne, Conting. Rem. 226. 20 § 31, supra. 26 Report of Commissioners of Stat- 21 Vide infra, this section. utory Revision under this section, Ap- 22 10 Rep. 78a. pendix I, infra. 23 2 Chance, Pow. chap. 22, § 2 ; Fearne, Conting. Rem. 226, seq. Power of Appointment. 235 ject which have occasionally been referred to since 1830 should be settled by the Legislature. The proposed section is in harmony with the weight of authority and with the rest of the law on this subject. See 2 Smith's Fearne, 193; Root v. Stuyvesant, 18 Wend. 268; Hawley v. James, 5 Paige, 467." In view of this note in their Report to the Legislature it is obvious that this section^'^ leaves the law just where it was, unless the power called in the Revised Stat- utes " a power in trust," is a power of appointment. According to Sugden, by the old law, " powers to appoint were powers taking effect under the Statute of Uses;^ a power in trust was a trust, rather than a power deriving its effect from the Statute of Uses.^ The Revised Statutes destroyed the former law of powers and sub- stituted the article on Powers.*" It is, therefore, a question to be determined, not by the common law, but by the article on Powers, whether or not an estate subject to a power is vested or contingent. Effect of this Section. Before this act*^ a power given by a will to executors to sell real estate and divide the proceeds among speci- fied persons living at the time of division, was a power in trust under the Revised Statutes, and it is so classed by this act. Such a power is imperative and operative to suspend vesting.*^ A power in trust, or of sale, might, under the article on Powers, prevent vest- ing.** It is, therefore, evident that this section (31) has no reference to such powers, and that it does not apply to any powers except quondam " powers of appointment," when not in trust. The law is, therefore, undisturbed by this enactment. A recent case, involving the point discussed, confines the application of this section to powers of appointment and states that they do not prevent vesting.** 27 § 31, The Real Prop. Law. • 33 Matter of Will of Butterfield, 133 28 Powers, I, I. N. Y. 473 ; Dana v. Murray, 122 id. 29 Id. II, 158. 604; Booth V. Baptist Church, 126 id. 30 Coster v. Lorillard, 14 Wend. 265, 215, 239, 240; Dana v. Jones, 91 App. 314; Root V. Stuyvesant, 18 id. at Div. 496; cf. Matter of Brown, 154 p. 271 ; Jennings v. Conboy, 73 N. Y. N. Y. 313; Hobson v. Hale, 95 id. 588; 230, 233 ; Cutting v. Cutting, 86 id. Van Vechten v. Van Veghten, 8 Paige, 522, S3P, S37; Delaney v. McCor- 104, 120, 121, 124, as to effect of mack, 88 id. 174, 180. power of sale on trust limitations. 31 The Real Prop. Law. 34 Matter of Delano, 82 App. Div. 32 Matter of Will of Butterfield, 133 147, 152; Matter of Bostwick, 160 N. Y. 473; Dana v. Murray, 122 id. N. Y. 489, 492; cf. Cruikshank v. 604, 613, citing Delafield v. Shipman, Cruikshank, 39 Misc. Rep. 401, and 103 id. 463; Delaney v. McCormack, see that a peremptory power of sale 88 id. 174. does prevent vesting, supra, p. 230. 236 Rule Against Perpetuities. § 32. Suspension of power of alienation. — The absolute power of alienation is suspended, when there are no persons in being by whom an absolute fee in possession can be con- veyed. Every future estate shall be void in its creation, which shall suspend the absolute power of alienation, by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate; except that a contin- gent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom, the first remainder is limited, die under the age of twenty- one years, or on any other contingency by which the estate of such persons may be determined before they attain full age. For the purposes of this section a minority is deemed a part of a life and not an absolute term equal to the pos- sible duration of such minority. Formerly i Revised Statutes, 723, sections 14, 15 and 16, with the follow- ing words added : " For the purposes of this section, a minority is deemed a part of a life and not an absolute term equal to the possible duration of such minority.'' § 14. Every future estate shall be void in its creation, which shall sus- pend the absolute power of alienation for a longer period than is prescribed in this Article. Such power of alienation is suspended', when there are no persons in being, by whom an absolute fee in possession can be conveyed.^ § 15. The absolute power of alienation, shall not be suspended by any limitation or condition whatever, for a longer period than during the con- tinuance of not more than two lives in being at the creation of the estate, except in the single case mentioned in the next section.^^ § 16. A contingent remainder in fee, may be created on a prior remainder in fee, to take effect in the e-ent that the persons to whom the first remainder is limited, shall die under the age of twenty-one years, or upon any other contingency, by which the estate of such persons may be determined before they attain their full age.^'^ The following words in the last portion of the section (32) are new : " For the purposes of this section a minority is deemed a part of a life and not an absolute term equal to the possible duration of such minority." Comment on Section 32. The 32d section of the Law of Real Prop- erty, now under consideration, it will be observed, transposes sen- tences of the Revised Statutes and alters the language in some re- spects. The effect of those transpositions znd alterations, it is thought, ought not to be considered as instituting changfts in the 35 Repealed, chap. 547, Laws of 1896. 3'' Repealed, chap. S47, Laws of 1896. 38 Repealed, chap. 547, Laws of 1896. Suspension of Power of Alienation. 237 law, for the Commissioners of Statutory Revision expressly stated to the Legislature that the Revised Statutes were thereby " un- changed in substance, except that the last sentence, which is declara- tory of existing law, is new. See Lang v. Ropke, 3 Sandford, 369." ^* In view of this statement, and even of the apparent mean- ing of the new section, it would seem undesirable to regard the Re- vised Statutes as changed in any particular in so far as the lawful suspense of the power of alienation is concerned.^* Section 32 then simply consolidated i Revised Statutes, 723, sections 14, 15 and 16,*" and added a" new sentence intended to be declaratory of pre- existing construction.*^ The present section, now under- considera- tion, states the " new rule directed against perpetuities," or the un- lawful suspension of the power of alienation. The Old Rule against Perpetuities. Ill order to comprehend the changes instituted by the Revised Statutes in the rule against per- petuities, as it stood by the common law, it is necessary to recall not only the language of the old rule, but its precise extent and application. At common law, and long before the old rule against perpetuities was precisely determined by the judges of England, (it received its final form only in 1833*^), there were certain doc- trines relating to seisin and to the creation of estates by way of re- mainder which served the purpose of a " rule against perpetuities," although the rule itself was an independent one, not formulated until long subsequent to the Statutes of Uses and of Wills.*^ Old Rule Did not Apply to Legal Limitations. It has been said by a writer of the highest authority that the former rule against per- petuities had no application to legal limitations, by which is meant those limitations of estates contained in the assurances recognized by the common law and existing independently of the Statutes of Uses and Wills.** Thus it had no application to estates limited as 38 Report of Commissioners of Stat- Lorillard v. Coster, s Paige, at pp. utory Revision, Appendix I, infra. i8g, igo. 39 Cf. Chapl. Express Trusts & Pow- *2 Cadell v. Palmer, i CI. & Fin. ers, § 386. 372. The commencement of the rule *o Supra, p. 236. itself postdates the reign of Henry ■*! There was no great -harm in such VIII. Vide infra, under this section. consolidation, as sections 14 and 15 ** Challis, 80, 143, 207. of the Revised Statutes were to be ** Challis, 152, 153, 158; et vide 2 read together without consolidation. Prest. Abst. 114, 148; Mr. Hargrave 238 Suspension of Power of Alienation. remainders*^ or to estates limited on common-law conditions of de- feasance contained in conveyances operating by common-law assur- ances.*^ The unquestionable doctrine that the rule against per- petuities had originally no reference to estates created by way of re- mainder at common law has, however, been combated by Mr. Lewis in his celebrated Treatise on the Law of Perpetuity.*^ His opinion has been adopted by several other writers, but without sufKcient reason.*^ Cole v. Sewell was affirmed in the House of Lords,*^ and it has been lately said by the greatest writer on the law of real prop- erty since Lord St. Leonards that the notion " that the rule against perpetuities applies (apart from express statutory enactment) to legal limitations made by way of remainder is one of those questions which ought never to have arisen. It implies an anachronism which may be said to trench on absurdity." ®° New York Rule Does Apply to Remainders. While the final opinion just mentioned is unquestionably accurate, it is predicated of the common-law doctrines relating to remainders, viz., that every re- mainder must vest during the continuance of the particular estate or at the moment when it determines, and that all remainders could be barred by the tenant of the immediate freehold.®^ It of course fol- lowed that when the Revised Statutes of New York took away this power of barring the remainder, and did not require the remainder to vest during or at the termination of the precedent estate, the revisers would subject all limitations by way of remainders to the statutory in Thelluson v. Woodford, 4 Ves. 242, covenants in the nature of conditions, 250; I Powell, Dev. 389, Mr. Jar- and i Sanders, Uses, 213. man's note. This statement is also *^ Chap. XVI (ist ed.) and supple- confirmed by an article in Law Quar. ment thereto in 1849, pp. 97 et seq.; Rev. [XIV, p. 133] showing that the et vide 2 Sharsw. & Budd, Lead. Cas. rule did not apply to legal remainders, Real Prop. 333, 334; 14 Law Quar. but did apply to equitable remainders. Rev. 234. Sed cf. an article in same Review ** Tudor, Lead. Cas. Real Prop., [p. 234, vol. XIV] to the contrary. note, pp. 470 et seq.; 2 Jarm. Wills, *5 Challis, IS9 ; 2 Washb. Real Prop. 727 et seq., being comments on Cole 23s (ist ed.) ; Sir E. Sudgen in Cole v. Sewell. V. Sewell, 4 Dr. & W. at p. 28. Sug- «2 H. L. Cas. 186. den, Introd. to Gilbert, Uses, XL ^ochallis, 159. 46 Challis, 152, IS3, 207 ; Gray, Rest. ^i Including a remainder limited on 30; cf. Giberts v. Peteler, 38 N. Y. at an estate tail. Wilkes v. Lyon, 2 Cow. pp. 168, i6g, as to relief in equity on 333. Suspension of Power of Alienation. 239 rule against perpetuities, especially as the statutory remainder em- braced former shifting and contingent uses and future interests created by executory devise.^^ Object of the Old Rule. Having pointed out that the former rule against perpetuities had no relation to estates limited by common- law assurances or by way of remainder, it will suffice to indicate generally that it was invented to meet the new forms of convey- ance which arose after the Statute of Uses and Wills, and that it applied only to conveyances operating under the Statutes of Uses and Wills (except where certain uses were construed to be com- mon-law remainders when they fell under the rules regulating remainders at common law).®^ Thus all executory estates except remainders (not vested in interest), whether arising by executory devises under the Statute of Wills or by shifting and springing uses under the Statute of Uses (including powers of appointment), were subject to the rule against perpetuities. Such uses and executory limitations were in derogation of the principles of the common law, and the rules regulating assurances at common law were conse- quently inadequate to prevent a perpetuity, for under those statutes an estate might be limited to commence in future and might take effect upon the happening of some contingency other than the deter- mination of a precedent estate of freehold, and it could not be barred. How the Old Rule Arose in England. The rule against perpetuities, as finally fixed in the nineteenth century by the judges of England, though referable only to estates created by way of use or by execu- tory devise, was resolved on a precise analogy to the period allowed by the common law for ordinary settlements by way of particular estates and remainders.®* At common law there could be no re- mainder of inheritance except one in fee simple; and such a re- mainder could subsist in expectancy only upon an estate for life or 52 Leonard v. Burr, i8 N. Y. at statement of the decision in Chud- p. 107; cf. Challis, 161. leigh's case in Garth v. Cotton, i 53 Lewis, Perp. 56, 109 ; Cruise Dig., White & Tudor, Lead. Cas. in Equity, tit. 16, chap, s, and see Chudleigh's at p. 827. case, that a use limited by way of re- ^4 Lewis, Perp. 165 ; Cruise Dig., tit. mainder should take effect before or 32, chap. 24, § 19; Bengough v. El- at the determination of the particu- dridge, i Sim. 267, cited Tudor, Lead. lar estate. Butler's note to Fearne Cas. Real Prop. (ed. 1879) at p. 433; Conting. Rem. 561 ; Cruise Dig., tit. 16, Strahah, Prop. (3d ed.) 175. chap, s, § 10. See Lord Hardwicke's 240 Suspension of Power of Alienation. pur autre vie. After the Statute De Bonis, a remainder of inherit- ance became possible in the shape of a fee tail. But all limitations permissible by the old common law did not tolerate a suspension of the power of alienation beyond a life in being and the infancy of issue of tenant in tail.^^ The period finally fixed for the lawful sus- pense of the power of alienation in the case of executory limitations was not fixed without protest.^^ It was just stated that the rule against perpetuity was formulated upon precise analogy to the com- mon-law rule allowing settlements by way of particular estates and remainders.^'' It would not have been competent for the common- law judges to invent a new rule, or to amend the common law,®* any more than it would for them to alter or abrogate it. Parliament alone had that authority;^® a principle we find often recognized in this State, especially in cases declaring that statutes changing the common law must be construed strictly.^** Therefore, the judges of England simply applied an older set of rules concerning legal limita- tions to the new or executory forms of limitations. Old Rule Did Not Apply to Limitations Subsequent to Estate Tail. The old rule against perpetuities had no reference to limitations subse- quent to an estate tail, because such limitations had at all times (even subsequent to the rise of executory limitations, in the shape of uses and devises) been liable to destruction by means of a com- mon recovery. Such limitations were, therefore, not obnoxious to the mischief which the rule was designed to prevent.®^ Nor did the rule import that the limitation must vest within the prescribed time, but only that, if it ever vested, it must vest within that time.®^ Statement of the Old Rule. The rule against perpetuities received its final form in England in the case of Cadell v. Palmer only in 1833, and while this decision is not binding on the courts of this country as authority, its reasoning is conclusive and establishes the 55 This is beautifully stated by the 59 Co. Litt. iisb. late Mr. Challis in language so pre- *<> Fitzgerald v. Quann, 109 N. Y. cise, technical, and elegant as to be in- 441 ; Dean v. M. E. R. Co., 119 id. comparable, Challis, Real Prop. 158, 540. 160. «i Challis, 146, citing NicoUs v. 56 Cole V. Sewell, 2 H. L. Cas. 186, Sheffield, 2 Bro. C. C. 215 ; Heasman at p. 233. V. Pearse, L. R. (7 Ch. Div.) 27s; 57 Supra, p. 239. Strahan, Law of Property, 178. 58Cunliffe v. Brancker, 3 Ch. Div. 62 challis, 164. at p. 410; Challis, 152. Suspension of Power of Alienation. 241 rule, at common law, to be as follows : Property could not he ren- dered inalienable beyond a life or lives in being and twenty-one years afterward, without reference to the infancy of any person whatever; a person en ventre sa mere was for the purposes of the rule consid- ered as in existence.^* The fact that the period of gestation was allowed to enter into the lawful period at all has given rise to the erroneous impression that the period of gestation might be added, to the term in gross of twenty-one years, but this was not the case.®* We find this period of gestation often referred to as part of the law- ful term in gross, in both early and late cases in New York.^^ But it cannot be that the term in gross by the common law was longer in New York than in England. The fact is that the duration of the lawful term in gross was long undecided. We find even Sir Edward Sugden very uncertain about it on different occasions in his life. In his notes to Gilbert on Uses he states that a shifting use cannot be made to take effect on an event " beyond the period of a life or lives in being and twenty-one years afterward, and a few months allowing for gestation and the birth of a child; nor can the twenty-one years, there is great reason to contend, be taken as an absolute term, but only as depending on the infancy of thc\ person intended to be benefited." ^ In Cadell v. Palmer he again traced the growth of the rule with historical accuracy, and while forced to admit that the twenty-one years was then a lawful term in gross, he contended successfully that the addition of the period of gestation to the term of twenty-one years was unauthorized by valid precedents, and the court finally so decided.®^ Many of the Ameri- can cases were decided while this point of law was undecided or " in nubibus." But since it was finally decided in England no cause in America has ever been adjudicated to the contrary, at least after a full and proper discussion of the common law. The period of ssArmitage v. Coates, 35 Beav. i; 683, 6go; cf. i Sanders, Uses & Cadell V. Palmer, i CI. & Fin. 372 ; Trusts, 201 ; and see my note to Essay Inglis V. Sailors' Snug Harbour, 3 on Law of Char. Uses in N. Y. 148, Pet. 99, 114. 149. 6* See note to Cadell v. Palmer, ^ Sugden's Gilbert on Uses, 156 Tudor, Lead. Cas. Real Prop. & Conv. (Ed. London, 1811) ; Sugden, Law of 464; Challis, 159. Prop. 313, seq. ® Coster V. Lorillard, 14 Wend. 265, ®^ And see to the same effect Inglis 29s ', Williams v. Williams, 8 N. Y. at v. Sailors' Snug Harbour, 3 Pet. 99, P- 554; Chwatal v. Schreiner, 148 id. 114. 242 Suspension of Power of Alienation. gestation, therefore, cannot by the common law be added to the term in gross as decided in Cadell v. Palmer.^* New Rule in New York. The revisers of the statutes of New York took up their consideration of the rule against perpetuities before the decision of Cadell v. Palmer, and revised it so as to reduce the common-law period from any number of lives in being to two; at the same time restoring the term in gross to the period of actual minority,^^ contended for by Sir Edward Sugden as the true inter- pretation of the rule by the common law.™ Two Lives in Being the Lawful Measure. Two lives in being only are now the measure of the lawful period during which the power of alienation may be suspended in this State,'^^ except in a single case mentioned below, and a limitation suspending the power of aliena- tion for a definite space of time, unconnected with a life in being, such as a term of years or even a day, is void.'^^ A person en ventre sa mire is a life in being within the rule.'''^ But after the period of two lives in being, the statutes tolerate a limitation of a remainder in fee to a person not in being at the time the estate is created, and if such person die under the age of twenty-one, then a contingent remainder to another in fee. This permissible contingency adds the period of actual infancy to the term of two lives in being.''* ^8 Ut supra, p. 241. Schlereth v. Schlereth, 73 App. Div. 89 Revisers' Notes to the Article on 283. Legal Estates ; Manice v. Manice, 43 '?2 Smith v. Chesebrough, 82 App. N. Y. 303, 374. Div. 578; Staples v. Hawes, 39 id. TO Ut supra, p. 241. 548 ; McGuire v. McGuire, 80 id. 63 Ti Hone's Exrs. v. Van Schaick, 20 (citing Phelps v. Pond, 23 N. Y. 69 ; Wend. 564; Yates v. Yates, 9 Barb. Leonard v. Burr, 18 id. 107; Bascom at p. 346 ; Tucker v. Tucker, S N. Y. v. Albertson, 34 id. 584) ; Kalish v. at p. 417; Beekman v. Bonsor, 23 id. Kalish, 166 N. Y. 368; Smith v. at p. 316; Hobson v. Hale, 95 id. at Chesebrough, 176 id. 317, 322. p. &11; Rice v. Barrett, 102 id. 161, ^3 Cooper v. Heatherton, 65 App. 164 ; Cruikshank v. Home for the Div. 561 ; Cogan v. McCabe, 23 Misc. Friendless, 113 id. at p. 351; Greene Rep. 739. v. Greene, 125 id. 506, 510; Booth v. 74 j r. g. 723, § 15; Manice v. Man- Baptist Church, 126 id. 215, 236; Un- ice, 43 N. Y. 303, 374; Harriot v. derwood v. Curtis, 127 id. 523, 541; Harriot, 25 App. Div. 245, 248; The Durfee v. Pomeroy, 7 App. Div. 431; Real Prop. Law, art. II, § 32; Purdy Scott V. Monell, i Redf. 431, 439; v. Hayt, 92 N. Y. 446, 456. Vide infra, under this section, pp. 259, 260. Suspension of Power of Alienation. 243 Section 32, supra. It will be observed that section 32 of this act has added the words, " For the purposes of this section a minority is deemed part of a life, and not an absolute term equal to the possible duration of such a life." Had this amendment read " part of a life in being," it might have been a very serious interference with the provisions of the Revised Statutes. The added words were intended to assert the existing rule of law, viz., that, for the purposes of the section, a minority is not a part of a term in gross.'^^ With this con- struction superadded, the new words add nothing and take away nothing from the rule prescribed by the Revised Statutes. When Measured by Minority. An actual minority is not an improper measure for a trust term, as it is virtually one for a life in being, or a lesser period. The trust terminates on the death of cestui que vie at any time before attaining his majority. The trust term is not one for twenty-oee years in gross.''^ Definite Space of Time. A limitation for a definite space of time, e. g., ten years, is not void when the suspension is terminable sooner on the dropping of a life in being.'^'^ Abeyance of Seisin. How far, in addition to this section, the com- mon-law prohibition against an abeyance of the seisin, by act of the parties, may stilF* operate to invalidate limitations now putting the seisin in abeyance, may be a question which the original revisers may not have contemplated.™ Yet, as permitting an estate of free- hold to commence in futuro may place the seisin in abeyance, as it is conceived,*'' the only statutory prohibition against that result is probably intended to be stated in this section. It would be strange if a feudal rule of the common law still operated to prevent perpetui- ties here, when the intention was to consolidate all such rules in this single section.*^ ''s Report of the Commissioners of ^s challis, 77, 78; Watkins, De- Statutory Revision, Appendix I. scents, 131 ; i Prest. Est. 216 ; et ''^ Becker v. Becker, 13 App. Div. vide infra, under i 40, The Real 342 ; Lang v. Ropke, S Sandf. 363 ; Prop. Law. Eells V. Lynch, 8 Bosw. 465, 475 ; "^^ Wood v. Taylor, 9 Misc. Rep. Benedict v. Webb, g8 N. Y. 460; 640; Van Nostrand v. Marvin, 16 Mansbach v. New, 58 App. Div. 191. App. Div. 28, 32; Heeney v. Brooklyn '^'^ Vide, p. 242, supra, note 72 ; Benev. Society, 33 Barb. 360. Brown v. Brown, S4 App. Div. 6; 80 xhe Real Prop. Law, § 40; Leon- Bird v. Pickford, 141 N. Y. 18; ard v. Burr, 18 N. Y. at p. 107. Steinway v. Steinway, 163 id. 183 ; si Mason v. Jones, 2 Barb, at p. 252, Matteson v. Palser, 173 id. 404; Shaw where the court says, in substance, V. English, 40 Misc. Rep. 37, 40. 244 Suspension of Power of Alienation. Original Conception of a Perpetuity. Formerly at common law a per- petuity involved suspension of the power of alienation and not the remoteness of the limitation or remoteness of the time of vesting, so that where there was a present power to alienate or bar future es- tates there was no perpetuity.®^ In later times in England this con- ception was strongly combated by such text-writers as Lewis on the Law of Perpetuity. Professor Gray, of Harvard, adopted his view. In England, contrary to the opinion of such great property law- yers as Sugden, this modern interpretation of the rule against per- petuities triumphed, but not without dissent, and in that country a limitation is now void if it vest too remotely, and a present power to bar or defeat the too remote future interest does not cure the defect. Thus in modern England, the present rule against per- petuities is one directed against remoteness of vesting. The New York revisers of 1829 began their consideration of the rule before remoteness of vesting became the test of a perpetuity. Thus, in conformity with the older doctrine, they made the suspension of the power of alienation the sole statutory test of a perpetuity. That the weight of authority then coincided with their interpretation is hardly open to doubt.*^ What a "Perpetuity" Is and Was. Having referred to the period prescribed by the Revised Statutes for the lawful suspension of the power of alienation, let us next consider briefly what now constitutes a perpetuity, with a view of determining more precisely the extent which this section has changed the common law. Any rule directed against a perpetuity ought, in the nature of things, to refer to the suspension of the power of alienation. A perpetuity has been de- clared to be " an estate inalienable, though all mankind join in the conveyance ;" ®* and^ again, " a perpetuity is, when all that have in- terest join, yet they cannot bar or pass the estate." ^ The Revised Statutes, as it will be remembered, defined a perpetuity as existing that, by law, there may be an abey- rule and further particulars of the ance of the seisin. discussion and the authorities. 82 Sugden in Cadell v. Palmer, i 84 Scattergood v. Edge, i Salk. 229. CI. & F. 372, etc., vide infra, next ^5 -Washbourne v. Donnes, i Ch. paragraph and under § 47, The Real Cas. 23, cited by Lewis, Perp., chap. Prop. Law. 12; Duggan v. Slocum, 92 Fed. Rep. 83 See an article in the Alb. Law 806, 808 ; Ould v. Wash. Hospital, 95 Jour. (vol. 59, p. 351), by this writer, U. S. 303, 312. stating the reasons for the New York Suspension of Power of Alienation. 245 " when there are no persons in being by whom an absolute fee in possession can be conveyed," ®^ and this definition is maintained by this section of the present law.*'' The statutory definition of a perpetuity is better adapted to the nature of existing estates in lands, and while not essentially different from that formerly recognized by the common law it has very precise relations to the contingent legal estates now tolerated ; for not all contingent legal estates (which are necessarily " future estates ") now tend to create a perpetuity, but only those, it is apprehended, which have persons not in esse con- nected with the legal title.** Neither by the older common law nor by the existing law of New York is there any objection to estates granted in perpetuity, provided they are able to be barred by persons in esse of their own motion and without the aid of courts, for, as Sir Edward Sugden said, " the old law raised no objection to estates granted in perpetuity, provided there was a power to bar them or destroy them so as to render them alienable." *^ The same principle is admitted in New York under the existing statutes relating to real property, and the sole test of an unlawful perpetuity is still, whether or not there are persons in being who can give a perfect title.*** Where there are living persons who have unitedly the entire power of disposition, free and untrammeled, the statutory rule against per- petuities has no application.®^ A perpetuity then is not so much an invalidity for remoteness as an invalidity because the estate is not 86 I R. S. 723, § 14. Murphy v. Whitney, 140 id. 541, *■? The Real Prop. Law, § 32. 546 ; Spitzer v. Spitzer, 38 App. Div. ^^ Infra, p. 246, seq. 437, 439; Garvey v. McDevitt, 72 89 Argument in Cadell v. Palmer, N. Y. at p. 563; Stoiber v. Stoiber. I CI. & F. 372; same point, Hawley 40 App. Div, 156; Jesup v. Pringle V. James, 16 Wend. 121. Memorial Home, 27 Misc. Rep. 427, 90Gott V. Cook, 7 Paige, at pp. 542, 431; Snedeker v. Congdon, 41 App. 543; Maurice v. Graham, 8 id. at Div. 433; Wilber v. Wilber, 45 id. 158, p. 486; Lawrence v. Bayard, 7 id. 7S, 165 N. Y. 451; Kessler v. Friede, 29 76; Hawley v. James, 16 Wend, at Misc. Rep. 187; Mills v. Mills, 50 p. 121 ; Griffen v. Ford, i Bosw. 123 ; App. Div. 221 ; Haug v. Schumaker, Vanderpoel v. Loew, 112 N. Y. 167, 50 id. 562, 567, 166 N. Y. 506; Neil- 186; Purdy V. Hayt, 92 id. 446, 451; son v. Brown, 31 Misc. Rep. 562, 564. Beardsley v. Hotchkiss, 96 id. 201, ^i Hawley v. James, 16 Wend, at 214; Rice V. Barrett, 102 id. 161; p. 121; Norris v. Beyea, 13 N. Y. 273, Genet v. Hunt, 113 id. 172, 526; Wil- 289; Robert v. Corning, 89 id. 225, liaras V. Montgomery, 148 id. 519, 235; Nellis v. Nellis, 99 id. 505, 516; 526; Deegan v. Wade, 144 id. 573, Wilber v. Wilber, 45 App. Div. 158; 576; Sawyer v. Cubby, 146 id. 192; affd., 165 N. Y. 451. 246 Suspension of Power of Alienation. susceptible of being alienated by persons in being.®^ It is hardly- necessary to say that when an estate in fee is immediately alienable the limitation of such an estate has not suspended the power of alienation. The statement admits of no doubt under the New York statute. But the power to alienate or bar the estate must be a present power at the time the limitation takes effect, and not a power to arise in the future; otherwise the limitation tends to a perpetuity. Limitations Formerly Tending to a Perpetuity. The nature of the lim- itations which formerly tended to a perpetuity may next be consid- ered again for a moment. They were only the executory limitations known as springing and shifting vtses and executory devises.®^ In, Cadell V. Palmer,** Sir Edward Sugden said : " Every executory devise" [is] " as far as it goes, a perpetuity;" and this is generally stated in the cases. What Limitations Now Tend to a Perpetuity. The Revised Statutes, having consolidated and made uniform all the old principles relating to such interests as were formerly denominated " remainders," " uses " or " executory devises," it is necessary to determine anew what limitations of estates now tend to a perpetuity in New York. There is some confusion in the dicta of the courts upon this point. At least some of the general statements require at times certain modi- fications, or they are essentially misleading, and even untrue. In Leonard v. Burr it was said : " There are two methods by which the absolute ownership and power of alienation may be suspended; one is by creating a future estate by way of executory devise or con- tingent remainder." *^ But since contingent estates are now alien- able, devisable, and descendible by statute,*® therefore, not all con- tingent remainders tend to a perpetuity, but only those (as the re- 92 Sawyer v. Cubby, 146 N. Y. 192 ; »* Tudor, Lead. Cas. Real Prop. 435, 59 Alb. Law Jour. 351 ; Stoiber v. and see Williams v. Williams, 8 N. Y. Stoiber, 40 App. Div. 156, 159, 160. at p. 504, 93 Mr. Lewis points out, in sub- *s 18 N. Y. 96, 107, and see Hawley stance^ that had executory interests, v, James, 16 Wend, at p. 121 ; Leonard created by future uses and executory v. Burr, i8 N. Y. 96, 107; Steinway devises, been destructible, as were v. Steinway, 163 id. 183; Wilber v. contingent remainders, the rule Wilber, 165 id. 451, 456; Matter of against perpetuity would have been Conger, 81 App. Div. 493, 496. unnecessary. Lewis, Perp. 128, 132, 96 i R. S. 725, § 35 ; The Real Prop. 134 ; cf. Hawley v. James, 16 Wend. Law, art. II, § 49 ; Ham v. Van Orden, at p. 121. 84 N. Y. 257, 270. Suspension of Power of Alienation. 247 visers properly intimated) which are limited to persons not in esse, or perhaps to aliens, by a deed, or settlement.*^^ Thus it is too gen- eral to intimate that all contingent remainders tend to create a per- petuity. Rapallo, J., with greater precision, has pointed out that, under our present system of conveyancing, a perpetuity can arise in two ways only, " by means of an express trust or power in trust, or by a contingent limitation." ^ It will be observed that this learned judge does not use the term " contingent remainder," but " contingent limitation," a modification tending to greater accuracy of analysis. The point is of consequence in connection with state- ments to the effect that contingent remainders are inalienable;^* statements obviously too general, for, again, only those contingent remainders are inalienable (as the revisers said) which are limited to persons not in being, or not in esse.^ Many of the adjudged cases, involving contingent remainders, are, therefore, in reality, of small consequence to the rule against a perpetuity, for they turn upon the point whether or not such remainders were alienable by contingent remaindermen in esse,^ a point not now to be doubted.^ Limitations of Estates in Trust. It is conceded by all the authorities that the Revised Statutes first made estates limited on express trusts inalienable,^ and that this class of limitations, therefore, now fall J 96^4 Smith V. Secor, 157 N. Y. 402; ig6; Murphy v. Whitney, 140 id. 541, McGillis V. McGillis, 11 App. Div. S46 ; Dougherty v. Thompson, 27 Misc. 359, 362. Rep. 738, 744. ^'''Radley v.- Kuhn, 97 N. Y. at 1 Chapl. Susp. Alien. 20, 36. p. 34, quoted inaccurately in Dana v. * Moore v. Littel, 41 N. Y. 66 ; Murray, 122 id. at p. 617; Smith v. Ham v. Van Orden, 84 id. 257, 270; Edwards, 88 id. at p. 102; Murphy v. Kenyon v. See, 94 id. 563; Beardsley Whitney, 140 id. at p. 546; Wilber v. v. Hotchkiss, 96 id. 201, 213; Dodge Wilber, 165 id. 451, 456; Matter of v. Stevens, 105 id. 585, 588; cf. Rad- Conger, 81 App. Div. 493, 496. Sed ley v. Kuhn, 97 id. at p. 35. cf. Booth v. Baptist Church, 126 id. 3 Hawley v. James, 16 Wend. 121 ; at p. 237 ; Hawley v. James, 16 Wend. Leonard v. Burr, 18 N. Y. at p. 107 ; at p. 121 ; Everitt v. Everitt, 29 N. Y. Hillen v. Iselin, 144 id. at p. 379 ; at p. 71. Robert v. Corning, 89 id. 225 ; Mat- 88 Dana v. Murray, 122 N. Y. at ter of Conger, 81 App. Div. 493, 496. p. 617. The only trust estate tending to a ^ Kenyon v. See, 94 N. Y. 563 ; perpetuity at common law was a trust GrifSn v. Shepard, 124 id. 70, 76; to accumulate. C/. Ram, Wills, 6, 16; Dodge V. Stevens, 105 id. 585, 588; Lewin, Trusts, 138; Everitt v. Everitt, Booth V. Baptist Church, 126 id. 215, 29 N. Y. at p. 90 ; et vide infra, under .237; Sawyer v. Cubby, 146 id. 192, § 76, The Real Prop. Law. 248 Suspension of Power of Alienation. within the rule against perpetuities prescribed by the statute.* The trust term must, therefore, expire at the expiration of two lives in being, when the inheritance passes to the trustees or the Hmitation in trust first takes legal effect.^ The consideration of valid limitations in trust belongs to the subsequent article on Uses and Trusts and need not be pursued here, as this article deals only with limitations of the legal estate. The same course will be pursued in respect of powers which suspend alienation ; they will be reserved for considera- tion under the article on Powers. 1 Vested Remainders. As a rule vested estates and remainders, except those of trustees for non-alienation, do not tend to a perpetuity, al- though their limitation may be obnoxious to the rules regulating successive life estates.^ Contingent Limitations of Legal Estates. The contingent limitations of legal estates which now tend to contravene the rule against a per- petuity must be now, as formerly, purely futuritive contingent limi- tations where vesting is suspended. Formerly, such limitations were mainly those limitations called " executory devises " and " shifting " or " springing uses." '' It is properly said that there is under the Revised Statutes now no such thing as an " executory devise." ® By statute, all estates in expectancy are become either " future es- tates " or " reversions." ® But future estates may be again (I) " fu- ture estates " proper; (II) remainders; for, as pointed out, quondam springing devises and springing uses are not strictly embraced in the statutory definition of a remainder,^* although the former shift- ing uses and devises are doubtlessly become statutory " remain- *Id., p. 247, note 3. 247, 253; Purdy v. Hayt, 92 N. Y. 5 yide infra, Article on Trusts. The 446, 451 ; sed vide infra, " Remain- insertion of a mere power of sale or ders which open to let in ;" et cf. City exchange may not relieve a limitation of Brooklyn v. Seaman, 30 Misc. Rep. in trust from tending to a perpetuity. 507. Van Vechten v. Van Veghten, 8 T cf. Williams v. Williams, 8 N. Y. Paige, 120, 121, 124; Allen v. Allen, at p. 554. 149 N. Y. 280; cf. Crooke v. County * Beardsley v. Hotchkiss, 96 N. Y. of Kings, 97 id. 421 ; Belmont v. at p. 213 ; Tilden v. Green, 130 id. at O'Brien, 12 id. 394 ; Heermans v. Rob- p. 47 ; cf. the language of the court ertson, 64 id. 332, 353. in Van Home v. Campbell, 100 id. 6 Bailey v. Bailey, 97 N. Y. 460, 287. 470; Frazer v. Hoguet, 65 App. Div. » i R. S. 723, §§ 9, 10, 11; The Real 192, 200; Matter of Ryder, 41 id. Prop. Law, §§ 26, 27, 28, supra. 1" § 28, supra, p. 202. Suspension of Power of Alienation. 249 ders." ^^ It will be, however, readily observed that while " execu- tory devises " and " future uses " are not, as formerly, strictly ac- curate technical terms under the Revised Statutes, estates executory are still tolerated and may be created by devise or by grant. So under the old Statute of Uses, now embodied in the Revised Stat- utes, future estates may and do arise and still take effect as uses by force of the Revised Statutes. Certainly such estates are not im- properly denominated " shifting " or future uses.^^ But all such executory devises and future uses as are now tolerated are subjected to statutory regulations. The construction of all limitations of ex- pectant estates, whether such as are created by deed or devise, is now the same. Not so when future estates are to be created by virtue of a power; for a power granted by deed must be more formal than one granted by a will.^^ The principles of the former law and those of the existing law of estates are, however, often not widely sepa- rated. At times again the difference is very marked — the tendency being to treat the real property statute not as in derogation of the common law, and to be construed strictly, but as part of a general reformatory scheme which is to be regarded in its entirety, and with reference to its motive and ultimate design. What Contingent Limitations now Tend to a Perpetuity. We shall fur- ther consider what particular " contingent limitations " of legal es- tates tend to create, or do create, a perpetuity. The revisers, in their " Notes " on the article on " Legal " Estates, expressed the opinion that no future estate is inalienable unless there is a " contingent remainder."^* This does not necessarily mean that all contingent remainders tend to a perpetuity. This note, on its face, is confined to limitations of purely legal estates.^^ The revisers had in mind the great difference then existing between legal and equitable estates; for the distinction was still in full force in the revisers' day, by rea- son of the existence of the Court of Chancery and the separate courts of law. The revisers, in their statement in the note in ques- tion, had no reference to estates which were contingent because of n Cf. 2 Sharsw. & Budd, Lead. Cas. ^^ Jennings v. Conboy, 73 N. Y. at Real Prop. 467; Beardsley v. Hotch- P- 234. kiss, 96 N. Y. at p. 213. 1* Cf. Lorillard v. Coster, 5 Paige, 12 As in Oilman v. Reddington, 24 191, 219; Booth v. Baptist Church, 126 N. Y. 9; Harrison v. Harrison, 36 id. N. Y. at p. 237; Dana v. Murray, 122 543. id. at p. 617. 15 R. S. arts. 2, 3, chap, i, part. 2. 250 Suspension of Power of Alienation. some collateral event. They must have referred solely to a contin- gency arising from a limitation to persons not in esse. Their defini- tion of a perpetuity precludes any other notion. Thus a limitation " to 'A ' for life and then to ' B ' for life and if ' B ' die before 'A ' to ' C ' for life, remainder to ' D ' in fee," interposes an alternative contingent remainder before an ultimate remainder in fee;^® but under the statute, as it does not suspend the power of alienation,^^ it does not now tend to a perpetuity.^* Nor did the revisers by such reference to a contingent remainder exclude the hypothesis that a perpetuity might never be created by a trust or a trust of a power; although by their action, after the Revised Statutes, there is some reason to suppose that they never meant that trusts should be inalienable or tend to perpetuities. From what has been already said, it is perhaps apparent that by " contingent remainders " the revisers, in their note to the article on Estates, referred not altogether to common-law " contingent re- mainders," but to the new statutory contingent " remainder," com- pounded of former uses and devises.^^ The Revised Statutes de- fined cases where future legal estates are invalid because of remote- ness, but prescribed as the general test of invalidity — a suspension of the power of alienation, — which exists, they say, " when there are no persons in being by whom an absolute fee in possession can be conveyed."^ It will be found that the only limitations of legal estates which now tend to transgress this rule are those (i) which give future interests, or estates, to persons not in being,^^ or to aliens;^ and (2) those which are limited to trustees for some execu- tory express trust purpose, which limitation renders the estate in- alienable by force of the statute;^* (3) where a future estate is sub- is Feame, Conting. Rem. 7; § 41, at p. 550; Chapl. Ex. Trusts & Pow., The Real Prop. Law. § 386; Booth v. Bap. Church, 126 IT § 49, The Real Prop. Law. N. Y. at p. 237 ; Smith v. Secor, 157 18 I R. S. 723, § 14; § 32, The Real id. 402; Stoiber v. Stoiber, 40 App. Prop. Law. See under § 33 this lim- Div. 156; i Columbia Law Rev. 53. itation considered further. ^M.cG\\\\a v. McGillis, 11 App. 19 The Real Prop. Law, § 28, supra. Div. 362, 154 N. Y. 532. 20 § 32, supra; formerly 1 R. S. 723, 23 Vide infra, under § 85, The Real § 14; § 33, The Real Prop. Law. Prop. Law; Matter of Conger, 81 21 Hawley v, James, 16 Wend, at App. Div. 493, 496. p. 121; Mott V. Ackerman, 92 N. Y. Suspension of Power of Alienation. 251 ject to an unexecuted power.^* The instances embraced in the sec- ond and third class of limitations will be considered at length in con- nection with the Article on Trusts and the Article on Powers. The discussion under this section is limited wholly to limitations of legal estates, or those estates formerly cognizable in courts of law, and protected by the common law. Contingent Remainder in Fee. In this connection it is to be remem- bered that successive life estates can be now limited only to persons in being,^^ but a contingent remainder in fee may be limited after a life estate, to persons not in being at the creation thereof,^ and so an alternative contingent remainder in fee may be limited to take effect in the event that the first remainder in fee is defeated before the majority of the remainderman.^ In every such instance the ultimate contingent remainder in fee must vest either during the two lives in being at the date of the settlement, or else during the actual minority of the first contingent remainderman, otherwise the limitation transcends the statute and is void, because too remote.^* Meaning of Revisers' Statement that Contingent Remainders Render Es- tates Inalienable. If we confine the revisers' statement, " that an es- tate is never inalienable unless there is a contingent remainder, and the contingency has not occurred," to such legal estates as now de- pend on precedent estates, and have reference to the distinction pointed out, under section 30,^* between vested estates and contingent estates, we shall perceive that under the present statutory law of estates in New York, a perpetuity now exists in reference to legal V estates in the following instances : (I) Where there is a limitation of an estate for life to one in being, remainder to his remote descend- ants, such as his grandchildren or great-grandchildren, not in being, in fee. It is always possible that even great-grandchildren may be 2* Vide infra, under § 159, The Real 27 § 32, supra, p. 236. Prop. Law. 28 Hawley v. James, 16 Wend, at 25i R. S. 723, § 17; § 33, The Real p. 121; Du Bois v. Ray, 35 N. Y. Prop. Law. At common law a life 162; Manice v. Manice, 43 id. at estate could be given to a person p. 374 ; Purdy v. Hayt, 92 id. 446, 456 ; not born, but no estate to the issue of Dana v. Murray, 122 id. 604, 617; such person. See under § 33, infra; Stoiber v. Stoiber, 40 App. Div. 156, cf. § 28, supra, on cross-remainders. 160; Thompson v. Vidal, 28 Misc. ^^ Infra, p. 268; Purdy v. Hayt, 92 Rep. 711. N. Y. at p. 456; Durfee v. Pomeroy, ^^ Supra, p. 228, seq. IS4 id. 583. 252 Suspension of Power of Alienation. born during this precedent life estate, but it is also possible that they may not be born in the lifetime of the life tenant or that of his son, or even in that of his grandson (a period embracing three success- ive lives). ^^ Thus, such a limitation may not vest in fee until three successive lives are exhausted in the natural course, or before a great-grandchild of the life tenant may be born. Obviously such a limitation of a legal estate is a contingent limitation of a remainder, being one to a person not in esse, and contravenes the existing rule against a perpetuity ; for the law of perpetuities always regards pos- sibilities, in limitations of estates, not probabilities;^^ and a limi- tation of a future estate, to be valid, must necessarily vest within the time allowed by the rule. Such a limitation to remote descendants as a class is not now in actual contravention of any other section of the existing statutes.^^ The remainder is in fee, and is to take effect after a single life estate. At common law such a remainder would have been wholly void, unless it vested during, or at, the expi- ration of the precedent estate. But this rule was abrogated by the Revised Statutes,^* and the only rule now existing in regard to contingent remainders is that they must vest within the statutory period. This rule is inflexible, and should so be, in any well-regu- lated State. The invalidity of such a limitation as that last sup- posed is apparent, as it falls within the condemnation of the note of the revisers, just mentioned, and within their definition of a per- petuity.^* (II) The revisers' statement also applies to a limitation of a life estate to a person not in being, remainder in fee to the issue of such life tenant as purchasers. This limitation will be considered in the next paragraph. Meaning of Revisers' Statement that Contingent Remainders Render an Estate Inalienable. A perpetuity now exists also in a limitation of an estate, if an estate for the life of an unborn person is followed by a successive estate in fee to the issue of such life tenant as pur- chasers : e. g., "An estate to the eldest child (unborn) of my son 30 The great-grandchild might be man, 117 id. at p. 437; Thompson v. posthumous; cf. Hobson v. Hale, 95 Vidal, 28 Misc. Rep. 711. N. Y. at p. 612, 32 1 R. s. 724, § 18 ; The Real Prop. 31 Amory v. Lord, 9 N. Y. 403, 415 ; Law, art. II, § 34. Schettler v. Smith, 41 id. 328; Knox 33 i r. s. 725, § 34; The Real Prop. V. Jones, 47 id. at p. 397; Purdy v. Law, art. II, § 48. Hayt, 92 id. at p. 457 ; Dana v. Mur- 34 j r g 723, § 14, now § 32, The ray, 122 id. at p. 617 ; Haynes v. Sher- Real Prop. Law. Suspension of Power of Alienation. 253 John, during the life of such eldest child, remainder in fee to the lawful issue of the body of such eldest child." ^^ Here no rule o'f the statute is contravened except that against perpetuities.^'^ An estate for life to a designated person in posse is followed by an estate in fee.^'' The remainder in fee, as it is limited to persons not in being, is contingent and now suspends alienation. It is obvious that this remainder may not vest within the statutory period. Such a limitation is, therefore, void under the existing law. At common law a particular estate could not be an estate for the life of a person not in esse.^^ There is now no express rule of the statute preventing a devise of a particular or precedent estate to a person unborn, and no other rule preventing it, unless it be that every present devise must vest in possession at testator's death, or not at all,^® except- ing the existing statutory rule against a perpetuity.*** Under the last rule the limitation in question is obviously void. How in practice a freehold estate to commence in futuro can be eiifected by deed, unless the deed is delivered in escrow, or some trust or inter- mediate estate created, it may be difficult to determine, but the point of this illustration is to emphasize that the abolition of the rule that a freehold cannot at common law be created to commence in futuro, permits all manner of future estates, provided only they do not contravene the new, or revised, rule against a perpetuity. At common law such a limitation as that last mentioned would have been void as to the precedent estate, because no estate of freehold could be limited so as to commence in futuro, except by way of re- mainder.*^ Consequently the limitation of a present precedent estate 35 Since the abolition of estates tail ^9 Campbell v. Rawdon, i8 N. Y. in New York, issue of the body is a 412, 418; Lougheed v. The D. B. proper and precise expression to carry Church, 129 id. at p. 215. See below, a fee simple to lineal descendants. under this section, on devises to cor- 36 It is no objection to a remainder porations to be formed. in fee that it begins in futuro, or that *" Supra, p. 236. How far abey- it is limited to persons not in being ance of the seisin in itself operates when the limitation is created, to suspend the power of alienation Purdy V. Hayt, 92 N. Y. at p. 456; is still a question. Cf. Wood v. Durfee v. Pomeroy, 154 id. 583. Taylor, 9 Misc. Rep. 640; Heenev v. 3'? I R. S. 724, § 18 ; The Real Prop. Brooklyn Benev. Society, 33 Barb. Law, art. II, § 34. 360; 2 Black. Comm. 107. 38 2 Black. Comm. 167 ; but this was *i Supra, p. 202. The particular es- because a freehold estate could not tate must always have been limited commence in futuro or seisin be in to a person in esse. 2 Prest. Abst. abeyance. 148. 254 Suspension of Power of Alienation. for the life of an unborn person would have been impracticable and void under the rules just denoted.*^ At common law the remainder also would have been void if contained in a deed, because no estate to an unborn person could be followed by an estate to the issue of such unborn person as purchasers.*^ But the revisers of the statutes took away both these rules of the common law,** and avoided such a limitation solely because it conflicted with the statutory rule against perpetuities; such contingent remainders, as future estates, being now within that rule. What Other Contingencies may Enter into Limitations. Besides the con- tingencies referable at common law to the future birth of issue, the happening of other future events might lawfully be made the basis of limitations of future estates by way of remainder.*^ But it is to be recalled in this connection that by the common law no limitation of a remainder might abridge the regular determination of a prece- dent or particular estate.*® A limitation which did serve to abridge a prior estate, limited at the same time, was not a remainder but a " conditional limitation," and valid only under the Statute of Uses, or as an executory devise, but not valid by the common law.*'' Yet at the common law the contingent termination of a particular estate might, according to Mr. Fearne, make a contingent remainder.*^ Thus, conveyance to A. to the use of B. till C. returns from Rome, then remainder over to D. in fee. This limitation is cited by Mr. Fearne*^ as affording an example of a common-law remainder, con- 42 2 Black. Coram. 167. ^°Cf. Williams, Principles Real ** Fearne, Conting. Rera. 502 ; Hay Prop. p. 272. This elementary Eng- V. Earl of Coventry, 3 T. R. 83, 86. lish book, intended in England for If contained in a will the limitation young students, is hardly entitled to would have been supported as an es- the consideration it receives from the tate tail at common law. Fearne, highest courts in this country. But Conting. Rem. 204, Butler's note, the chapter just cited is very admi- But under the Revised Statutes the rably written and the authority just remaindermen take as purchasers, i cited apposite. R. S. 725, § 28. The same result « i Prest. Abst. 114. would be attained by our statute turn- « Van Home v. Campbell, 100 N. Y. ing estates in tail into fee simple. 291, 292. I R. S. 722, § 3. In either event the *8 cf. i Prest. Est. 71, who insists limitation of the remainder would be that the contingency is not in the void as too remote under the rule now particular estate but in the remainder. in force. *® Fearne, Conting. Rem. 5. Mr. ** I R. S. 724, § 24 ; The Real Prop. Preston insists that suc'.i a remainder Law, art. II, § 40. is contingent because the beginning Suspension of Power of Alienation. 255 tingent because the end of the precedent estate was uncertain. It will, however, be observed that Mr. Fearne's first example of a com- mon-law limitation is one dependent upon the Statute of Uses, thus showing the comparatively late origin of many of even the so- called doctrines of the common law, and corroborating Mr. Justice Story's statement that at least one-half of the common law had arisen since the reign of Queen Elizabeth.^" No one can understand the modern law regarding real estates unless he clearly distinguishes legal or common-law limitations from those limitations valid as uses or devises, for such principles are singular in their mutual rela- tions in a composite and historical jurisprudence. At the present day, under the Revised Statutes, a so-called " remainder " may take effect in derogation or abridgment of a precedent estate created at the same time,^^ and need no longer, as formerly, await the regular determination of a precedent estate.^^ This new rule was necessitated by the express application by the revisers of the former rules relating to uses and executory devises to the creation of estates called " remainders." Thus, the events which now may be made the basis of contingent limitations are in theory broader than the events discussed by Mr. Fearne in his work on Contin- gent Remainders,^^ for they embrace all the future events formerly tolerated in connection with shifting or springing uses or devises.^* It may be stated generally that no illegal act or event may now be the basis of a limitation of a future estate, and that the event must not be too remote. Thus, the birth of illegitimate issue, contracts for concubinage, the commission of treason, or any other act either malum in se or malum prohibitum cannot enter into the limitation of a future estate. We may next consider affirmatively what events may be the basis of contingent limitations. Contingent Estates may now be Limited on what Events. Mr. Fearne's celebrated instance of a contingent estate, the return of C. from Rome terminating B.'s estate and vesting D. in fee,^^ is still, no doubt, such an event as may be lawfully utilized by conveyancers, of the remainder is uncertain. But ^^ j r_ g. 724, § 34 ; § 48, The Real this seems a very trifling distinction. Prop. Law; cf. i Prest. Abst. 114. I Prest. Est. 71. 53 Chap. II. BO I Eq. Juris., § 646. 54 Van Home v. Campbell, 100 N. Y. 51 1 R. S. 725, § 27 ; The Real Prop, at p. 292 ; 4 Kent Comm. 271. Law, art. II, § 43. B5 n is not original with Mr. Fearne. 256 Suspension of Power of Alienation. because it is one depending upon the act of a living person, C, and must happen in C.'s lifetime if at all. Any contingency, depend- ing upon the happening of an event to be caused by the will of a single living or natural person, may still be the basis of a valid limitation, as the event must happen, if at all, within the life of a single known and definite agent or actor. Events thus contin- gent are quite incapable of causing a perpetuity under the Re- vised Statutes; they are extrinsic to the power of disposition. If a limitation of an estate by way of remainder is made to vest in possession on the return from Rome of four living persons, it is not necessarily void under this section. The invalidity depends solely on the persons entitled in remainder. If the limitation in remainder is to persons unborn it may be, of course, contingent and invalid.®^ But if the remainder is to a person in being, the un- certainty of the time when such remainders may vest in possession is wholly inconsequential under the existing rule against a per- petuity, stated in the section under consideration (32).^'^ Contingency Limited on Impersonal Events. When the uncertainty or contingency then of a limitation resides in an impersonal event, and not in the dubiousness of the person to whom a remainder is limited, it cannot now contravene the rule against perpetuities,^* especially as contingent remainders are now by statute made alien- able, devisable, and descendible, both at law and in equity.®^ No Perpetuity when there are Persons in Being who can Alien a Fee. Such illustrations as those just given serve to show the accuracy of the statement of the revisers, that the power of alienation is now suspended only when there are no persons in being by whom an absolute fee in possession can be conveyed.^" They throw con- SBHobson V. Hale, 95 N. Y. at Moore v. Littel, 41 N. Y. at p. 84; p. 612; Radley v. Kuhn, 97 id. at Mott v. Ackerman, 92 id. at p. 550; PP- 3S, 36; supra, pp. 250, 251. Booth v. Baptist Church, 126 id. at B7 Moore v. Littel, 41 N. Y. 66 ; p. 237 ; Chapl. Ex. Trusts & Pow., Purdy V. Hayt, 92 id. 446, 451 ; Genet § 386. V. Hunt, 113 id. at p. 172; Dana v. 59 i R. S. 725, § 35; The Real Prop. Murray, 122 id. 604, 618; Williams v. Law, § 49; Ham v. Van Orden, 84 Montgomery, 148 id. 519, 526; Maurice N. Y. 257, 270; Mott v. Ackerman, 92 V. Graham, 8 Paige, at p. 486. id. 539, 5505 Sawyer v. Cubby, 146 id. 58 Wadsworth v. Murray, 29 App. at p. 196. Div. 191, 196 ; 2 Washb. Real Prop. «<> i R. S. 723, § 15 ; i 32, supra; sed 237, 238; I Prest. Est. 75, 76; cf. cf. (contingent remainder to alien in Suspension of Power of Alienation. 257 siderable doubt on their note mentioned above, " that no estate is inalienable unless there is a contingent remainder," ^^ for only those contingent remainders which are contingent because they limit es- tates to persons not in being now tend to a perpetuity.''^ Under the present statute there is a distinction between a contingency which prevents vesting and one which prevents alienation.*'^ Semainder to Aliens. A limitation by deed of a remainder to an alien would seem to form an exception to the rule that remainders to persons in being are not contingent, and do not tend to a per- petuity. The alien cannot convey, and yet he may choose to become a citizen, but whether he will or not is uncertain.^* Yet, strictly, such a limitation is limited on a contingent event, and falls within Mr. Fearne's second class.^^ Limitations to Corporations to be Formed. Within the rule stated in this section of this act fall also such contingent limitations as those of a remainder to a corporation to be formed.^^ For a corporation to be formed is a person not in esse, for the purposes of the rule, and consequently, a remainder to a corporation to be formed must be made to vest during or at the expiration of two lives in being or it is void.*^ Yet it is to be observed that a remainder (created by will) to a corporation to be formed after testator's death, is neces- sarily contingent.*® A precedent estate must either be limited or else an estate must result somewhere until the corporation be formed esse) McGillis v. McGillis, ii App. was void, i Prest. Abst. of Tit. 128; Div. 359, 360, IS4 N. Y. 532 ; et supra, Challis, gi ; i Wooddeson, Law Lec- p. 224 and cases cited, note 39. tures, 121. This rule is quite changed 61 Supra, p. 251. now, when the hmitation is future and 62Wadsworth v. Murray, 29 App. not present. See below under § 42, Div. 191, 196; the author's view is The Real Prop. Law. confirmed by an article, i Col. Law 87 Burrill v. Boardman, 43 N. Y. 254; Rev. 52. Shipman v. Rollins, 98 id. 311, 328; "3 Shaw v. English, 40 Misc. Rep. Cruikshank v. Home for the Friend- 37, 40, and cases there cited; Stoiber less, 113 id. 337, 351; Booth v. Bap- V. Stoiber, 40 App. Div. 156, 159, 160; tist Church, 126 id. 215; Lougheed v. Mills V. Mills, 28 Misc. Rep. 633 ; s. c. The Dykeman's Baptist Church, 129 50 App. Div. 221; Dana v. Jones, 91 id. 211, 215; People v. Simonson, 126 id. 496, 499. id. 299; Tilden v. Green, 130 id. 29 8* McGillis v. McGillis, 11 App. Div. Bigelow v. Tilden, 18 Misc. Rep. 689 3S9, 362; IS4 N. Y. 532. Matter of Rounds, 25 id. 101, 107 ^^ Supra, p. 215. Jesup v. Pringle Memorial Home, 27 88 At common law a remainder id. 427. limited to a corporation, not in being, 88 Leslie v. Marshall, 31 Barb. 560. 258 Suspension of Power of Alienation. and entitled to take. This incorporation may never happen ; there- fore, the remainder must be contingent. An estate to "A." for Hfe, or any shorter time, remainder to " B.," a living person not an alien, is always a vested remainder,^ taking effect in interest as of the creation of the precedent or supporting estate. But, obviously, a limitation of an estate to a corporation to be formed after a testator's death cannot vest until the corporation be formed. The presump- tion on any devise should always be that the testator did not intend such estate to vest until the corporation shall be formed.™ It would be inconsistent for the law to allow devises to charitable or other cor- porations to be formed, and then to invalidate such devises because the corporations were not formed and irrespective of the rule against perpetuities. Yet a distinction seems to be made between the validity of a present devise to a corporation not in esse and a future devise to a corporation not in esse. A present devise, vesting at testator's death, seems, by the cases, to require present capacity to take on the part of the corporation.''^ But by the limitation of a remainder, the distinction denoted ought to be obviated. Indeed, it may be said, in this connection, that it would seem that even a present devise to a charitable corporation, not in esse, ought to be sustained now as a devise in the nature of a springing use or a springing de- vise, provided such devise must vest, if at all, within the statutory rule.''^ Limitation in Trust for Two Lives, Subject to a Vested Life Interest. A devise to trustees of a base fee, or for two lives in being, sub- ject to a vested estate to a widow for life does not contravene this section.''^ Limitation of a Fee upon a Fee. The Revised Statutes first enacted that a fee might be limited on a fee without resort to a will or to a use, provided the posterior limitation did not violate the statutory rule ^^ Supra, § 30; pp. 2og, 222. 277; Heeney v. Brooklyn Benevolent TO Shipraan v. Rollins, 98 N. Y. 311, Soc, 33 Barb. 360. at p. 328; Lougheed v. The Dyke- '^^See infra, under § 42, The Real man's Baptist Church, 129 id. 211, 216. Prop. Law; People v. Simonson, 126 Ti Campbell v. Rawdon, r8 N. Y. at N. Y. at p. 307; Matter of Conger, 81 p. 417; Leslie v. Marshall, 31 Barb. App. Div. at p. 497. 560; Lougheed v. The Dykeman's ''*§ 32, The Real Prop. Law ; Bailey Baptist Church, 129 id. 211, 2is; Ould v. Bailey, 97 N. Y. 460; Corse v. V. Washington Hospital, 95 U. S. at p. Chapman, 153 id. 466 ; Jesup v. Pringle 313; Wyman v. Woodbury, 86 Hun, Memorial Home, 27 Misc. Rep. 427, 433- Suspension of Power of Alienation. 259 against perpetuitiesJ* This was an innovation on the rules of the common law which clid not tolerate such a limitation of estates ; for no remainder existed after an estate in fee simpleJ^ Yet, even at common law, several fees might have been limited in the alternative by way of remainder upon the same particular estate, but upon such contingencies that not more than one of them can by possibility happenJ® Minority Added to Two Lives, when. Under the section now under consideration, it is expressly provided that a contingent remainder in fee may be limited on a prior remainder in fee to take effect in the event that the first remainder in fee is defeated before the majority of the first remainderman in fee.'''^ This provision of the statute added the period of an actual minority''* to the term of two lives in being, during which the power of alienation may be lawfully suspended. This addition was not, however, a term in gross of twenty-one years, but an actual infancy of a designated person, entitled de- feasibly in remainder. The added term is of limited application, and the normal period for suspension in every other case is two lives in being.''^ This Section Does Not Apply to Personal Property. Limitations of personal property are subject to the separate rule, stated in the Personal Property Law and not to this section.*" The absolute ownership of personal property may not be suspended beyond two lives in being, whereas the absolute ownership of real estate may be lawfully suspended for two lives and the period of actual in- fancy in addition.** 7* I R. S. 724, § 24; id. 723, § 16, 'SRadley v. Kuhn, 97 N. Y. at p. now § 32, supra, and § 40, infra. The 35 ; Manice v. Manice, 43 id. 303 ; Real Prop. Law. Beardsley v. Hotchkiss, 96 id. 201, T5 Co. Litt. 18a ; I Prest. Abst. 126. 216. 76 Challis, 61 ; Loddington v. Kime, ^9 Temple v. Hawley, i Sandf . Ch. I Salk. 224; Fearne, Conting. Rem. 153, 178; see, infra, next paragraph. 373 ; Hennessy v. Patterson, 85 N. Y. so § 2, chap. 417, Laws of 1897. at p. 99 ; I Prest. Abst. 126 ; The Rea< 81 Manice v. Manice, 43 N. Y. 303, Prop. Law, § 41 ; Matter of Mullen, 382 ; Beardsley v. Hotchkiss, 96 id. 25 Misc. Rep. 253. 201, 216; Greenland v. Waddell, 116 77 1 R. S. 723, § 16 ; § 32, supra; id. 234, 245 ; Matter of Rowland, 75 Mott V. Ackerman, 92 N. Y. S39, 549; App. Div. 207, 211; Schlereth v. Temple v. Hawley, i Sandf. Ch. 153, Schlereth, 173 N. Y. 444, 454; Matter 178. of Conger, 81 App. Div. 493; and see Fowler, Personal Prop. Law. 260 Suspension of Power of Alienation. Intention of Revisers in Allowing Period of Actual Infancy after Two Lives in Being. The original revisers, in their notes to the last-noticed section,*^ permitting a contingent remainder to be limited after a term of two lives in being, lawfully suspending the power of aliena- tion, appended the following very explanatory note to the section, with their report to the Legislature : " It may be useful to illustrate by examples the effect of section i6, as its meaning may not be immediately obvious. Suppose an estate devised to A. for life, and upon his death to his issue then living, but in case such issue shall die under the age of twenty-one years and without lawful issue, then to B. in fee. Here, in both cases, the remainder to B. would be valid as embraced by the terms of the section, but if the devise were to A. for life and after his death to B. for the term of twenty-one years, and upon the expiration of such term, to the oldest male descendant of A. then living, and if there he no such male de- scendant then living, to C. in fee. Here, the period of twenty-one years being an absolute term wholly unconnected with the infancy of any person entitled, both the term and all the remainders upon it would be void, and, on the determination of the life estate, the fee would descend to the heirs of the testator." This note makes it very clear that the intention of the section^^ was to change the rule of the common law which permitted a term in gross of twenty-one years to be added to any number of lives in being as the lawful period of suspension.®* The revisers submitted for the term in gross an actual infancy, and cut down the lives to two. This was the entire statutory reform in the old rule against perpetuities.®^ Contingent Remainders in Fee after Two Lives in Being. The first re- mainder in fee, permitted to be limited by this section on a term of two existing lives (during which term the power of alienation may be lawfully suspended), may be a remainder to a person not in being®® at the time the settlement becomes operative.®'' A remain- 82 1 R. S. 723, § 16. McGillis V. McGillis, 11 App. Div. 83 I R. S. 723, § 16. 359, IS4 N. Y. 532 ; Beardsley v. 8* Supra, pp. 241, 242. Hotchkiss, 96 id. 201, 216 ; Wilber v. 86 Per Nelson, Ch. J., in Hawley v. Wilber, 45 App. Div. 158, 162, 165 James, 16 Wend. 123, 124; Manice v. ISi. Y. 415. Manice, 43 N. Y. at p. 374. 87 Delivery of a deed or death of a 86 Manice v. Manice, 43 N. Y. at p. testator. See § 54, The Real Prop. 374; Purdy V. Hayt, 92 id at p. 456; Law. Du Bois V. Ray, 35 id. at p. 164; Suspension of Power of Alienation. 261 der to a person not in being is of course contingent.^* In addition to tliis first contingent remainder in fee, expressly permitted under this section, there may be superadded a second contingent remainder in fee to take efifect in the event that the person to whom the first remainder in fee is limited shall die under the age of twenty-one years or his estate be otherwise determined before his majority.*® Not a Fee Limited in Double Aspect. The first remainder in fee permitted under this section is not a fee limited in a double aspect which was good by the common law,^ but a defeasible, base, or determinable fee.®^ Conditional Limitation on a Base Fee. It is, however, the rule of this State that a conditional limitation to take efifect in derogation of a base, qualified, or determinable fee, must vest in possession within the rule or it is void, even if the limitation is charitable in its nature.*^ What Remainders Violate the Rule against a Perpetuity. Whenever there is an ulterior limitation after a precedent estate created at the same time, such ulterior limitation is now a " remainder " under the statute.®^ Whenever such remainder is [or may be] limited to a person or persons not in being, it suspends the power of alienation."* At the present day all limitations of remainders are within the statutory rule against perpetuities, and no such limitation may transcend the rule.®^ Indeed, whenever an ulterior or an inter- mediate limitation suspends the power of alienation beyond two lives in being and an actual minority of a remainderman in exist- ence at the end of the second life, such limitation of the fee is void under the statute.®* The section, relating to the acceleration of remainders,®'' applies only to vested remainders and not to contin- gent remainders.®* The rule against perpetuities is violated when more than two vested life estates precede a limitation to a person 88 Supra, p. 227. 107 ; Rose v. Rose, 4 Abb. Ct. App. 89 I R. S. 723, § 16; Manice v. Man- Decis. 108. ice, 43 N. Y. 303, 374 ; Beardsley v. ^3 gee under § 28, supra, p. 202. Hotchkiss, g6 id. 201, 216; Greenland ^ip^ges 251, 252, supra; et vide V. Waddell, 116 id. 234, 245; ScWereth Art. Powers, infra. V. Schlereth, 173 id. 444, 454. ^^ Supra, pp. 238, 239, 250. ^^ Supra, p. 259; § 41, The Real 96 The Real Prop. Law, § 32. Prop. Law. 97 j r. 5. 723, § 17; infra. The Real 91 Radley v. Kuhn, 97 N. Y. at p. Prop. Law, § 33. 35 ; Matter of Miller, 11 App. Div. 98purdy v. Hayt, 92 N. Y. 446; 337. Dana v. Murray, 122 id. at p. 618. 93 Leonard v. Burr, 18 N. Y. 96, 262 Suspension of Power of Alienation. not in being, except in the single case provided for in the above sec- tion whereby there may be a substitution for a remainder in fee in case a prior remainderman die under age.^^ Thus a limitation to J. & C. during their respective lives, and at their death to E., and at her death to her issue (unborn), is an ulterior, contingent limita- tion on more than two lives and void under the statute.^ Ulterior Limitation on Cross-Remainders. An ulterior limitation to persons not in esse, or other contingent limitation, preceded by cross- remainders, sometimes violates the statute against perpetuities as to some shares, without violating it as to others so limited.^ What Vested Estates Tend to Contravene the Rule against Perpetuity. The sole test of a Umitation tending to a perpetuity under this statute has been repeatedly pointed out : the non-existence of persons immediately able to bar or convey an estate in fee simple absolute.^ This state of facts cannot depend altogether on whether the estates limited are vested or contingent ; for, those vested estates which are subject to open and let in " after-born issue " involve persons not in esse, and, consequently, in some aspects such limitations render the estate inalienable, at least, until the particular or precedent es- tate terminates, so as to shut out the residue of the class.* It is not a test of alienability that the rights of such unborn persons may under some statute be cut off in a judicial proceeding.^ An estate which requires an application to a judge or court before it may be sold, is not alienable within the meaning of the statutory rule against perpetuities.^ While a vested remainder of this kind is properly termed vested, quoad the living, the interest of those who may be let in as after-born is not a contingent remainder, but a mere con- tingent possibility. 89 Radley v. Kuhn, 97 N. Y. at p. Div. 158, 162, 165 N. Y. 415 ; Dana v. 35 ; § 32, The Real Prop. Law. Jones, gi App. Div. 496, 499; cf. Kirk 1 Purdy V. Hayt, 92 N. Y. 446. v. Kirk, 137 N. Y. 510. 2 Purdy V. Hayt, 92 N. Y. 446 ; Dana ^ Kent v. Church of St. Michael, V. Murray, 122 id. 604; vide supra, 136 N. Y. 10; Kirk v. Kirk, 137 id. § 28, The Real Prop. Law, pp. 201, 510; Ebling v. Dreyer, 149 id. 460; 206 " cross-remainders." Boskowitz v. Held, 15 App. Div. 306, s Supra, pp. 244, 246, 256. 312. *Kilpatrick v. Barron, 123 N. Y ^ Genet v. Hunt, 113 N. Y. at p. 751; Harris t. Strodl, 132 id. 392; 172; Fowler v. IngersoU, 127 id. 472, Kent V. Church of St. Michael, 136 477. Cf. Mills v. Mills, 50 App. Div. id. 10, 16; Wilber v. Wilber, 45 App. 221. Suspension of Power of Alienation. 263 Vested Remainders which Open. A limitation, therefore, of a vested remainder, subject to open and let in after-born issue, is not im- properly designated a " contingent limitation," and this fact, as before pointed out, confirms the accuracy of the language of Rapallo, J., to the effect that trusts and contingent limitations (under the Revised Statutes), and not contingent remainders, em- brace the exclusive media of perpetuities.'' Agreements Fettering the Inheritance. Whether a time limit, within the rule against perpetuities, must be placed upon agreements to pre- empt, or buy back, the fee in case the land ever shall be applied to other than certain designated purposes, does not seem to have been noticed in a recent case.® If such a covenant run with the land it has been held in England that it must comply with the rule against per- petuities.® Conditions. The rule against perpetuities has been said by the highest authority not to apply to a common-law condition subse- quent in defeasance of an estate of freehold.^" But in England the opinion is now the other way. Covenants, in the nature of con- ditions, running with the land sometimes wear out with lapse of time, and no relief will then be afforded on them even by a court of equity.^^ The Revised Statutes expressly provided that the power of alienation should not be suspended by any condition beyond two lives in being. 1^ Therefore, wherever a condition may suspend the power of alienation it is expressly condemned by this Act. But as a con- dition subsequent may always be released, it has been said not to suspend the power of alienation. ^^ There is a great difference in T Supra, p. 247, this section. verier on conditions subsequent. In * Matter of Brookfield (Sarles' England the rule against perpetuities Claim), 78 App. Div. 520, and see is now applied to conditions subse- Bensiger v. Erhardt, 74 App. Div. quent. In re Trustees of Hollis Hos- 169. pital, & Hague's Contract (1899), 2 9 London & South Western Railway Ch. 540 ; Strahan, Prop. 34. Co. V. Gomm, 20 Ch. D. 562, 51 L. J. " Gibert v. Peteler, 38 N. Y. 165, Ch. 193, 530. 169; Trustees of Columbia College 10 1 Sharsw. & Budd, Lead. Cas. v. Thacher, 87 id. 311; Crocker v. Real Prop. 132, 189 ; Challis, 152, 206 ; Manhattan Life Ins. Co., 61 App. Div. Gray, Restraints on Alienation (2d 226, 233. ed.), 30, note; Matter of Hart, 61 12 1 r 5. 723, § 15; § 32, supra. App. Div. 587 ; cf. I Saunders, Uses 13 j Sharsw. & Budd, Lead. Cas. & Trusts, 207, 213. This point is, to Real Prop. 132; Challis, 152, 207; cf. some extent, open in several aspects, Oxley v. Lane, 35 N. Y. 340, 347. particularly as to possibilities of re- 264 Suspension of Power of Alienation. this respect between conditions precedent and conditions subse- quent. The latter never prevent the vesting of estates/* and are, therefore, as stated above, without the reason of the rule against perpetuities. But conditions precedent do prevent vesting, and are, therefore, within the rule.^^ Covenants for Perpetual Renewal of Leases. Covenants for perpetual renewal of demises have been said to tend to a perpetuity,^'' although perpetual demises of urban lands are valid in this State.^^ Trusts and Powers. We have already pointed out that by virtue of the statutes of this State a perpetuity might be created by the limi- tation of an express trust. ^® So it may arise by virtue of a power under the Article concerning Powers, which now regulates all powers to limit estates in lands ; all such powers relate back to the date of the instrument in which they are granted.^'' No estate limited, or to be limited, by virtue of a power may help to con- travene the section of the statute under review. If it does con- travene it, the power is void.^ Further comments on this subject of powers creating perpetuities will be reserved for the Article on Powers.^^ Annuities. As land charged with the payment yearly of a certain sum is often confused with the law touching " annuities," and also with trusts to pay sums out of net rents and profits, annually,^ let us consider the distinction between an annual charge on land and 1* Shannon v. Pentz, i App. Div. 19 1 R. S. 737, § 128 ; The Real 331, 335- Prop. Law, art. IV, § 158. 15 Rose V. Rose, 4 Abb. Ct. App. 20 Belmont v. O'Brien, 12 N. Y. Dec. 108; Challis, 157; Cruikshank 394, 403; Everitt v. Everitt, 29 id. V. Home for the Friendless, 113 39, 78; Booth v. Baptist Church, 126 N. Y. 337; Bigelow v. Tilden, 18 id. at p. 239; Eels v. Lynch, 8 Bosw. Misc. Rep. 689; Matter of Hart, 6l 465; Spitzer v. Spitzer, 38 App. Div. App. Div. 587, 593- 437. 16 Syms V. Mayor, etc., 105 N. Y. 21 infra, art. IV. IS3 ; Banker v. Braker, 9 Abb. N. C. 22 Bulkley v. De Peyster, ^6 Wend. 411; Piggot V. Mason, i Paige, 412, 23; Tucker v. Tucker, 5 N: Y. 408, 415. But see decisions enforcing cove- 415; Clark v. Clark, 147 id. 639, 643; nants for renewal. Downing y. Jones, Spencer v. Spencer, 38 App. Div. II Daly, 24s; Wilkinson v. Petit, 47 at p. 409; Rothschild v. Roux, 78 id. Barb. 230; Robinson v. Beard, 140 282; Frazer v. Hoguet, 65 id. 192; N. Y. 107. Matter of Hafner, 45 id. S49, 55 1; ^'^ Supra, p. 145, under § 20, The see Vernon v. Vernon, 53 N. Y. p. Real Prop. Law. 359, where a cestui que trust of an ex- 18 Supra, p. 247. press trust is called an annuitant, Suspension of Power of Alienation. 265 an annuity. An " annuity " at common law was a yearly sum charged on the person of the grantor. A rent charge, on the other hand, was something reserved out of an estate in land and charged on the land.^* It was said formerly that no limitation of an annuity in esse tends to a perpetuity.^ A trust of lands and to pay over rents and profits annually does not make cestui que trust an " an- nuitant " in the technical sense of that term. The act now under con- sideration, however, makes any conveyance in trust to sell, mort- gage, or lease lands for the benefit of annuitants an express trust.^ This provision is new in terms.^® So where a trust is charged with the payment of annual sums the recipient is now termed an " an- nuitant," and the " annuity " is not assignable.^'' It is, however, the rule that a mere charge on land, payable annually in the nature of a rent charge, does not per se suspend the power of alienation. A true " annuity " may be alienated, anticipated, or released, and the fee is not tied up or restricted by the charge on land.^ Where a contingent remainder to persons unborn is limited to take effect after the death of the survivor of twelve " annuitants," the power of alienation is unlawfully suspended; but not because of the " annuities," but the lives of the annuitants.^ Where an annuity is charged on a trust estate, and the trust scheme is entire, the an- and Mason v. Mason's Exrs., 2 Sandf. ^8 yide supra, under sections 20 and Ch. at p. S2S- 21, terms of years and rents in fee, 23 Co. Litt. 144b; 2 Black. Comm. and also Hobson v. Hale, 95 N. Y. 40. 588, 612; Matthews v. Studley, 17 App. 2*2 Prest. Est. 348. Div. 303; Eels v. Lynch, 8 Bosw. 25 The Real Prop. Law, art. Ill, 465 ; Lang v. Ropke, 5 Sandf. at p. § 76. 371 ; Hunter v. Hunter, 17 Barb. 25 ; 26 I R. S. 728, § ss ; cf, Hawley v. Killam v. Allen, 52 id. 605 ; O'Brien James, 16 Wend. 60, 117; Lang v. v. Mooney, 5 Duer, 51; Herzog v. Ropke, 5 Sandf . 363, 370, 371 ; De Kay Title Guarantee & Trust Co., 177 V. Irving, 5 Den. 646, 651. N. Y. 86, 100; Franklin v. Minertz- 2'' McGowan v. McGowan, 2 Duer, hagen, 39 App. Div. 5SS, SS9 1 Frazer 57; Buchanan v. Little, 6 App. Div. v. Hoguet, 65 id. 192; § 83, The Real 527, IS4 N. Y. 147; Cochrane v. Prop. Law; cf. Booth v. Baptist Schell, 140 id. 516; Franklin v. Min- Church, 126 N. Y. 215, 246, on be- ertzhagen, 39 App. Div. SSS, 5S9; quest to corporation subject to an- Hooker v. Hooker, 41 id. 235, 240; nuities, and vide infra under sections Matter of Thorne, 44 id. 8, 10; Dun- 76 and 83, The Real Prop. Law. ham v. Deraismes, 165 N. Y. 65 ; Tur- 29 Hobson v. Hale, 95 N. Y. at p. ner v. Mather, 86 App. Div. 172; 612; Hooker v. Hooker, 41 App. Div. Brown v. Quintard, 177 N. Y. 75. 235. 18 266 Suspension of Power of Alienation. nuity may fall with a trust.*" But it is otherwise where the bequest of the annuity is independent of the trust.*^ A so-called " annuity " charged on a trust fund may be a mere general legacy;*^ it may be an annual payment by the trustee of an express trust, or it may be a common-law " annuity." ** Devises and Limitations Partly Void under this Section and Partly Valid. Where devises of legal estates not in trust are partly void and partly valid under the rules stated in this section of the act, courts will sustain the estates well limited and declare void only those estates which transgress the rule.** So if the settlement is by deed, unless the deed itself is void.*^ Construction of Limitations Tending to a Perpetuity. To render limi- tations of future estates valid they must be so limited that they will not contravene the rule against a perpetuity.*® It is not enough that the limitation may not violate the rule; it must be apparent that it cannot.*^ The law regards possibilities, not probabilities.*^ But 30 Harris v. Clark, 7 N. Y. 242, 257; ray, 75 App. Div. 246, 249; Mendell Brown v. Quintard, 177 id. 75, 85. v. Levis, 40 Misc. Rep. 271, 273; 31 Buchanan v. Little, 154 N. Y. Mansbach v. New, 58 App. Div. 191, 147- 198; et infra, under article on Trusts, 32 Turner v. Mather, 86 App. Div. § 76. 172. *® Darling v. Rogers, 22 Wend. 483 ; ^^ Supra, p. 265. People v. Van Rensselaer, 9 N. Y. at 3* Salmon v. Stuyvesant, 16 Wend. p. 339 ; Curtis v. Leavitt, 15 id. at 321, 327; Kane v. Gott, 24 id. at p. p. 124; Savage v. Burnham, 17 id. at 666 ; Woodruff v. Cook, 61 N. Y. 638 ; p. 576. Tiers v. Tiers, 98 id. 568, 573 ; Hen- 36 Fowler v. IngersoU, 127 N. Y. derson v. Henderson, 113 id. i; 472,477. Haynes v. Sherman, 117 id. 433, 437. *7 Purdy v. Hayt, 92 N. Y. 446. The same principle is applicable to 457; cf. as to trusts, p. 385, infra, and trust settlements if the scheme is sus- Bird v. Pickford, 141 N. Y. 18, 20; ceptible of severance without violating Jesup v. Pringle Memorial Home, 27 the testator's intention. Dekay v. Misc. Rep. 427, 434; Underwood v. Irving, 5 Den. 646; Harrison v. Har- Curtis, 127 N. Y. 523, 540; Haynes v. rison, 36 N. Y. 543; Smith v. Ed- Sherman, 117 id. 433, 437; Frazer wards, 88 id. 92, 104; Kennedy v. v. Hoguet, 65 App. Div. 192, 200. Hoy, los id. 134 ; et vide Schermer- 38 Amory v. Lord, 9 N. Y. 403, 415 ; horn V. Negus, i Den. 448; Oxiey v. Schettler v. Smith, 41 id. 328; Dana Lane, 35 N. Y. 340; Van Home v. v. M«rray, 122 id. 604, 617; Strahan, Campbell, 100 id. 287, 294; Kalish v. Prop. 176; Herzog v. Title Guarantee Kalish, 166 id. 368; Matter of Mur- & Trust Co., 177 N. Y. 86, 99. Suspension of Power of Alienation. 267 where the construction is doubtful, that which makes for validity will be accorded.^* At common law all executory interests, subsequent to an executory interest violating the rule against perpetuities, are void, even though standing alone they would not be void.*" It is doubtful whether this is now the law in New York, as it depends on a more modern and different interpretation of the effect of the rule against per- petuities.*^ 39 Matteson v. Pulser, 56 App. Div. ** Strahan, Prop. 177. 9i> 95; 173 N. Y. 404; Coon v. Coon, *^ Supra, p. 244. 38 Misc. Rep. 693; Matter of Conger, 81 App. Div. 493, 497- 268 Successive Estates for Life. § 33. Limitation of successive estates for life. — Successive es- tates for life shall not be limited, except to persons in being at the creation thereof; and where a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and on the death of those persons, the remainder shall take effect, in the same man- ner as if no other life estates had been created. Formerly i Revised Statutes, 723, section 17 : § 17. Successive estates for life shall not be limited, unless to persons in being at the creation thereof; and where a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and upon the death of those persons, the remainder shall take effect, in the same manner as if no other life estates had been created.*^ Section Applies to both Vested and Contingent Life Estates. The pro- vision, that successive estates for life shall not be limited except to persons in being, applies to both vested and contingent future es- tates; but not so the part of the section directing acceleration.*^ This section, and, indeed, this entire article of the statute is con- cerned wholly with legal estates or those estates formerly cognizable in courts of law. That it has no application to equitable interests for life is apparent, for any number of successive equitable interests for life may now be created, provided the legal estate of the trustee to support them is within the rule against perpetuities.** Common Law and Law before the Revised Statutes. At common law any number of successive legal life estates might be limited to persons in esse.*^ The only mode of limiting successive or future legal es- tates at common law, as it will be remembered, was by way of re- mainder.**^ A future estate for life could be limited at common law to an unborn person; but not another estate for life to the issue of such unborn persons in succession.*^ If, however, a settle- ment was, before the Revised Statutes, made, not by a legal limita- 42 Repealed, chap. 547, Laws of 1896. Jackson ex dem. Nicoll v. Brown, 13 .*3 Purdy v. Hayt, 92 N. Y. at p. 451. Wend. 437, 441. 4* Vide under § 76 infra, " Bene- « Supra, p. 202. Later on they might ficiaries of a Trust." be limited by way of use or execu- *5 Cruise Dig., tit. 32, chap. 24, § 8 ; tory devise, supra, pp. 25, 38, 39, 202. cf. Purdy v. Hayt, 92 N. Y. at p. 451 ; *^ Cruise Dig., tit. 32, chap. 24, §§ 31- 34; Challis, 90; 2 Black. Comm. 170. Successive Estates for Life. 269 tion, but by way of use or executory devise, then the rule was that successive estates for Hfe could be limited, provided that the power of alienation was not suspended by any limitations to persons not in esse, beyond lives in being and a term in gross of twenty-one years.*^ Within that period, successive limitations of life estates to persons not in being could be freely effected by springing or shifting uses or executory devises. Acceleration of Remainders. The part of the foregoing section rela- tive to acceleration of remainders had reference exclusively to legal vested remainders, limited on life estates,*® then cognizable in courts of law.^" In analogy to the statutory rule reducing the period of suspension from any nuraber of lives in being to two, the orig- inal revisers deemed it obviously proper to circumscribe all legal limitations of life estates, precedent to remainders in fee, to two successive life estates, and to cut off all other estates for life limited before the remainder which then vested; This was termed " ac- celerating the remainder." ^^ The two life estates first successively limited are not destroyed by virtue of this section.^^ But a vested remainder is executed in possession (immediately after the effluxion of the two life estates first limited) in favor of such ascertained persons as are then entitled to immediate possession.^^ Remainders Limited on One or Two Lite Estates not Accelerated. This section has not reference to limitations involving remainders limited on one or two successive life estates. By its terms it accelerates only those remainders limited on more than two successive life estates.^* But this section does apply to cross-remainders limited after more than two life estates.^^ Successive Remainders to Persons in Being if Alternative. Whether the limitation of an estate to "A." for life, remainder to " B." for Hfe, *8 Supra, p. 239. 52 Woodruff v. Cook, 61 N. Y. 638 ; ■*9 Matter of Moore, 152 N. Y. 602 ; s. c, 47 Barb. 304. Piirdy v. Hayt, 92 id. 446 ; Dana v. ^3 Purdy v. Hayt, 92 N. Y. at p. Murray, 122 id. at p. 618; La Farge 452; Matter of Ryder, 41 App. Div. v. Brown, 31 App. Div. 542; cf. 247, 253 ; Matter of Eldredge, 29 Misc. Woodruff V. Cook, 47 Barb. 304; 61 Rep. 734; Matter of Conger, 81 App. N. Y. 638. Div. 493, 502. 50 Oilman v. Reddington, 24 N. Y. 54 Q^tt v. Cook, 7 Paige, 521, 542 ; 9, 14; Matter of Conger, 81 App. Div. Schettler v. Smith, 41 N. Y. 328, 347. 493, 502. 55 The Real Prop. Law, § 28 ; supra, 51 Gott V. Cook, 7 Paige, 542. pp. 205, 206. 270 Successive Estates for Life. and if " B." die before "A." remainder to " C." for life, remainder to " D." in fee, is governed by this section, seems not fully determined. The remainder to C. is contingent and may never take effect in interest or possession ;^^ it is, therefore, not accelerated under this section.^^ It is also alternative or substitutional. The remainder to D. in fee is vested and does not suspend alienation.^* A vested re- mainder formerly, and at present, may be limited after a contingent remainder.^* If C.'s remainder becomes vested, it is not to be con- sidered as successive to B.'s life estate but to A.'s life estate. The remainder to C. is substitutional, therefore, and permitted.^" This limitation does not violate the rule against perpetuities in any way as every estate and interest is alienable from the beginning.^^ The question is whether " C.'s " life estate may be regarded as successive to "B.'s" under this section, or whether it is successive to A.'s?^^ If not successive to B.'s, but two life estates precede the remainder in fee. Limitation of a Remainder in trust after a Single Life Estate. As a remainder may be limited in trust to take effect in possession after a vested estate for a life in being,^^ it would seem to be necessary to determine whether the estate of the trustees of an express trust is a life estate, or a qualified, or a base, fee.®* If it is a life estate a remainder in fee may be accelerated under this section.*^ If an estate be limited to trustees to receive the rents and profits and apply them to the use of "A." for life,^^ with power of sale and to apply the corpus to A.'s use, remainder to " B." for life, re- mainder to " C." for life, remainder to " D." in fee, it would seem that if the trustee's estate were a life estate, as has been sometimes held,®'' that then the remainder to D. would be accelerative under this section. But if, as sometimes held, their estate is a base or 58 Fearne, Conting. Rem. 7. Jesup v. Pringle Memorial Home, 27 BTPurdy V. Hayt, 92 N. Y. at p. Misc. Rep. 427, 433; Snedeker v. 4SI- Congdon, 41 App. Div. 433; Kessler 58 Purdy V. Hayt, 92 N. Y. at p. v. Friede, 29 Misc. Rep. 187 ; cf. City 451- of Brooklyn v. Seaman, 30 id. 507. 59 2 Washburn, Real Prop. 243. «* See the discussion under next 80 § 41, The Real Prop. Law ; Hen- section. nessy v. Patterson, 85 N. Y. 98, 99. 66 § 33 supra. The point seems not ^'^ Supra, p. 248. to have been noticed in Kessler v. 62 Purdy V. Hayt. 92 N. Y. at p. Friede, 29 Misc. Rep. 187. 451- 8« § 76, infra. 63 Bailey v. Bailey, 97 N. Y. 460, 67 yide infra, under next section. 470; Corse V. Chapman, 153 id. 466; Successive Estates for Life. 271 qualified fee under section 80,^* which gives trustees the whole estate, then this section does not apply. The limitation in question in no event violates the section against perpetuities, as all the re- mainders are vested.^® Until the quantity of the trustees' estate shall be conclusively adjudicated,™ this question is not easily an- swered. Cross-remainders. Where cross-remainders are limited after a de- feasible estate of inheritance or fee simple (such as in the case of a limitation of an estate " to A., B., C, D., arid E. and their heirs, and if any one or more die without issue, remainder to the sur- vivor), it is thought that this section of the Real Property Law can have no strict application. The precedent estate is not then a life estate, but a base or determinable fee.''* Under the statute. A., B., C, D., and E. are tenants in common.^^ The death without issue denotes the death of the ancestor, and no longer an estate tail.''* But as this estate of the ancestor is a fee and not a life estate, this section cannot apply to such limitations of estates as that given above, unless in cases of this character a fee is cut down by implication to an estate for life. Now fees are never cut down if another construction is possible.''* It is true that at common law a fee could not be thus limited on a fee, although fees could be limited by way of remainder in the alternative so that only one could vest.''^ But the Revised Statutes distinctly tolerate a limitation of a fee upon a fee,''* simply subjecting the validity of all such limitations to the single section against perpetuities.'''' 68 The Real Prop. Law. 29 Misc. Rep. 174, the decision is the 89 Purdy V. Hayt, g2 N. Y. at p. other way on the trustees' estate. 4SI et supra, p. 226. ti yidg supra, pp. 157, 159, under 70 Vide infra, under next section. § 21, The Real Prop. Law. In the case of the N. Y. Dyeing & 72 xhe Real Prop. Law, § 56, infra. Printing Co. (Daily Reg., Feb. 19, 73 The Real Prop. Law, § 38, infra. 1886), Lawrence, J., held that trus- 74Benson v. Corbin, 145 N. Y. 351; tees to receive rents and apply to the Byrnes v. Stilwell, 103 id. 433, 460; use of persons took a fee and could Campbell v. Beaumont, 91 id. 464, make leases of any duration. In the 467; Matter of Miller, 11 App. Div. Matter of Duncan (1902), Truax, J., 337, 340, et supra, p. 185. confirmed a report of the referee to 75 Co. Litt. 18 a ; Challis, 61, 64. the same effect. But the case is unre- 76 i r. s. 724, § 24 ; The Real Prop. ported. In Matter of Armory Board, Law, § 40. 77 The Real Prop. Law, § 32. 272 Successive Estates for Life. No Acceleration of Contingent Remainders. At common law, the ef- fect of the destruction, or failure, of a contingent remainder was to accelerate the next vested estate.^* The section of the act now under consideration has, however, been decided to have no refer- ence to the acceleration of contingent remainders; it applies only to vested remainders^* Presumption of Death of Life Tenant. A person on whose life an es- tate in real property depends, who remains absent or concealed for seven years is presumptively dead, unless it is afifirmatively proved that he is alive within the time.*" ''S Goodright v. 226. ra Purdy v. Hayt, 92 N. Y, 451 ; Dana v. Murray, 122 id, Cornish, i Salk. 618; cf. Woodruff v. Cook, 47 Barb. 304- at p. 80 § 841, Code Civ. Proc. ; vide su- at p. pro, p. 194, under § 24, The Real Prop. Law. Remainders on Estates Pur Autre Vie. 273 § 34. Remainders on estates for life of third person. — A re- mainder shall not be created on an estate for the life of any other person than the grantee or devisee of such estate, unless such remainder be in fee; nor shall a remainder be created on such an estate in a term of years, unless it be for the whole residue of such term. Formerly i Revised Statutes, 724, section 18: § 18. No remainder shall be created upon an estate for the life of any other person or persons than the grantee or devisee of such estate, unless such remainder be in fee; nor shall a remainder be created upon such an estate in a term for years, unless it be for the whole residue of such term.^i Remainder Limited on an Estate pur autre vie. Whenever a remain- der is now limited on an estate pur autre vie, it clearly must be in fee, under this section. Thus an estate to A. (and his heirs) so long as B. shall live, remainder to C. for life, remainder to D. in fee, is prohibited by this section. In other words, where an estate • is limited to A. (and his heirs) for the life of B., remainder to C, C.'s remainder must now be in fee. At common law the former limi- tation was good.*^ The revisers, however, desired to restrict all limitations of legal estates holden on lives of nominees unconnected with the title.*^ They, therefore, restricted limitations of estates, holden pur autre vie, by several sections of the Revised Statutes, that under consideration being the first. Remainder Limited on Joint Lives of Grantee and Another. Where a re- mainder is now limited on an estate for the joint lives of the grantee and one or more persons, the life estate would, no doubt, fall under this section, and be in effect an estate pur autre vie, requiring a remainder limited thereon to be in fee.** Is an Estate to Trustees for the Life of Beneficiaries an Estate pur autre vie? It seems strange that seventy-five years after the Revised Statutes took effect, the question, whether trustees of the four ex- press trusts take a fee, or an estate pur autre vie, should not be com- pletely settled. But an examination of the authorities must disclose that the question is not at rest, and that the adjudications are diffi- cult to reconcile. It is not improbable that when the revisers 81 Repealed, chap. 547, Laws of 1896. Appendix II, infra; Matter of Bo- 82 Watkins, Conveyancing, 36. gardus, 43 Misc. Rep. 473. 83 See their note with i R. S. § 15; 84 Co. Litt 41b; cf. Chapl. Susp. Alien., § 362. 18 274 Remainders on Estates Pur Autre Vie. abolished " equitable estates," they intended that trustees of an ex- press trust should take a fee simple absolute, at least for purposes of alienation, and, indeed, a fee simple in three of the four tolerated express trust purposes. But it was to be a defeasible fee in certain cases.*^ Consequently an estate to trustees of an express trust for the lives of A. and B. as cestuis is not always an estate for lives or pur autre me;^^ but by provisions of the Revised Statutes would seem to be a quasi inheritance, or a " qualified fee." *^ But this point is not definitely settled, and the meaning of section 80 of the present act is far from clear.** If such trustees do take and hold in fee, then as in other cases they hold as joint tenants,*^ while a sole surviving trustee has a particular qualified fee, or one where the estate on his death devolves on the Supreme Court instead of on his heirs.^" Notwithstanding this devolution, their estate in such a trust would seem none the less a fee and not now an estate pur autre vie.^'^ The 85 § 81, The Real Prop. Law; i ham, 17 id. 561, 569; Atnory v. Lord, R. S. 729, § 61. 9 id. 403; Noyes v. Blakeman, 6 id. 86 See old law, i Jarman's Powell 567 ; Coster v. Lorillard, 14 Wend, on Devises (ist ed.), 221, note. The 265, 304; Greason v. Keteltas, 17 N. estate of trustees to preserve contin- Y. 491 ; Bennett v. Garlock, 79 id. gent remainders was formerly an as- 302 ; Rankine v. Metzger, 69 App. tate pur autre vie. Challis, 115; Div. 264, 271, 272; Kernochan v. Mar- Lewin, Trusts, 217; 2 Jarman, Wills, shall, 163 N. Y. 472, 479; Gallie v. 221. Eagle, 6s Barb. 583; s. c, i (T. & C.) 8T A qualified fee is one prescribing Sup. Ct. 124; Kelly v. Hoey, 35 App. a rule of descents not normal; e. g., Div. 273, 276; Horsfield v. Black, 40 to heirs ex parte paterna. id. 264; Janpole v. Lasky, 94 ssCrooke v. County of Kings, 97 id. 353; cf. Embury v. Sheldon, 68 N. Y. at p. 446. N. Y. 227, 234; Moore v. Appleby, 36 89 § 56, The Real Prop. Law. Hun, 365, 371 ; Losey v. Stanley, 147 90 I R. S. 729, § 60; The Real Prop. N. Y. at p. 568; Matter of Tienken, Law, § 80, infra; i R. S. 730, § 68; 131 id. 391, 401; Provost v. Provost, The Real Prop. Law, § 91, infra. 70 id. 141, 145; Matter of McCaffrey, 91 See under §§ 80, 91, infra. The 50 Hun, 371; Gomez v. Gomez, 147 N. Real Prop. Law, and Leggett v. Per- Y. 195, 200; Stevens v. Melcher, 152 kins, 2 N. Y. 297; Craig v. Hone, 2 id. 551, 556; Geisse v. Bunce, 23 App. Edw. Ch. SS4 ; Rowland v. Clendenin, Div. 289 ; Brown v. Richter, 25 id. 239, 134 N. Y. 30s, 308; Crooke v. County 244; Matter of Tompkins, 154 N. Y. of Kings, 97 id. 421, 446; Duval v. 634; Doane v. Mercantile Trust Co., Eng. Luth. Church, S3 id. 500; Mar- 160 N. Y. 494, 499; Matter of Armory vin V. Smith, 46 id. 571; Briggs v. Board, 29 Misc. Rep. 174; s. c, 30 Davis, 21 id. S74, 577; Tobias v. Code Civ. Proc. 123, no appeal was Ketchum, 32 id. 319; Gilman v. Red- taken in this case as it was settled; dington, 24 id. 9, is ; Savage v. Burn- Miller v. Wright, 109 N. Y. 194, and Remainder in Terms of Years. 275 fee is not, however, a fee simple absolute, but, by virtue of the statute,®^ a qualified fee.®^ If the trustees' estate is not an estate pur autre vie, a limitation to trustees to apply, etc., during life of A., remainder to B. for Hfe, remainder to B.'s heirs in fee, is apparently not prohibited by this section, although at common law a life estate after a fee would be void as repugnant to the fee.®* This rule was, however, abolished by the Revised Statutes.®^ If trustees of the express trusts take a fee, a remainder in fee after devise on express trust to trustees is a fee mounted on a fee and permissible by the statute,^® when the contingency upon which the second fee vests must happen if at all within the Rule.®'^ Such a limitation after an estate to trustees is distinctly permitted by the statute.®* The argu- ment that an estate of a trustee of an express trust is now a quali- fied fee and not an estate pur autre vie is, of course, founded on the language of the statute.®® Remainder in Terms of Years. This section^ also prohibits a remain- der for life on an estate pur autre vie in a term of years. We have seen, under section 20 of this act, that long terms of years might be made in the revisers' day, and at the present time to the extent not actually prohibited by the Constitution.^ A term of years being only a chattel real,* the interest of the termor still goes to his executors, or else passes with his personal estate;* yet, as in long terms the interest of the termor may represent the entire value of land, the legal title to the fee being worthless, limitations of execu- tory interests in terms of years could not be left to the common law. They were accordingly regulated by the revisers of the stats- see a review of a like statute in Cali- 9T Supra, § 32, pp. 236, 258 ; Mott v. fornia, 36 Amer. Law Rev. 641. Ackerman, 92 N. Y. at p. S49. 92 § 80, infra. The Real Prop. Law. 9S Infra, § 81, The Real Prop. Law ; ®3 C/. Radley v. Kuhn, 97 N. Y. at Stevenson v. Lesley, 70 N. Y. 512; p. 35 ; Crook v. County of Kings, id. Losey v. Stanley, 147 id. 560; cf. 421, 446; Lorillard v. Coster, 5 Paige, Amory v. Lord, 9 id. 403, 413. at pp. 226, 227; revd., 14 Wend. 265. "s i R. S. 729, § 60; sed vide infra, 9* Cruise Dig., tit. 16, chap, i, §§ 4, under § 80, The Real Prop. Law. 49 ; Wright v. Miller, 8 N. Y. at p. 1 § 34, supra. 25- 2 The Constitution only prohibits ®5 § 40, The Real Prop. Law. demises or farm leases, reserving rent 96 Vide sub § 40, The Real Prop, out of agricultural lands. Supra, Law; Craver v. Jermain, 17 Misc. pp. 78, 144. Rep. 244 ; sed cf. Chapl. Ex. Trusts 3 § 23, supra. The Real Prop. Law. & Pow., § 458. * § 2712, Code Civ. Proc. 276 Remainder in Terms of Years. vites in 1829' consistently with the rules regulating estates of free- hold.^ By the old common law a termor could assign his whole interest, but not create subsidiary executory interests out of the term.'' This was soon altered, and a term could be limited to A. for life, with a limitation over to any number of persons in esse for life.^ So it could be limited for persons in esse by way of trust, or to persons not in esse.^ But no limitations were allowable which would render the term inalienable beyond the old rule against a per- petuity;^" viz., lives in being and twenty-one years in gross.^^ Terms of years were not within the Statute De Bonis, and could not be entailed. Interests in the nature of remainders in tail could be limited in a term only by assigning it to trustees, or donating it by will,^^ but not by deed.^^ Kemainder Created by Assignment of Term. By the present section it is now provided that where a termor desires to limit an interest to one pur autre vie, the remainder of the term is indivisible; the whole residue must be limited or no part of it. How far this section prohibits actual assignments of the term, by way of a remainder for life, when such assignments are made for a valuable considera- tion, is a question not decided. But the prohibition of the statute seems explicit. ^ I R. S. 724, § 18; § 34, supra; § 39, Perpetuities, 85 seq.; vide infra, un- infra. der § 39, The Real Prop. Law. ^Vide § 39, infra. 9 Qruise Dig,, tit. 8, chap. 2, § 20; "^ Cruise Dig., tit. 38, chap. 19, § i ; id., tit. 38, chap. 19, § 6 ; Challis, 139. Fearne, Conting. Rem. 402 ; Lewis, l" Id. supra; Watk. Conv. 23. Perpetuities, 84; Smith, Pers. Prop. '^'^ Supra, § 32, p. 240. 186, 187. 12 Cruise Dig., tit. 8, chap. 2, § 20; 8 Cruise Dig., tit, 8, chap. 2, § 21 ; cf. id,, tit. 38, chap. 19, § 3. id., tit. 38, chap. 19 ; Challis, 138, 139 ; 1^ Challis, 139. Fearne, Conting. Rem. 402; Lewis, Remainders Accelerated. 277 § 35- When remainders to take effect if estate be for lives of more than two persons. — When a remainder is created on any such life estate, and more than two persons are named as the persons during whose lives the life estate shall con- tinue, the remainder shall take effect on the death of the two persons first named, as if no other lives had been in- troduced. Formerly i Revised Statutes, 724, section 19: § 19. When a remainder shall be created upon any such life estate, and more than two persons shall be named, as the persons during whose lives the life estate shall continue, the remainder shall take effect upon the death of the two persons first named, in the same manner as if no other lives had been introduced.!* Remainders Limited on Joint Life Estates. This section is thought not to have any connection with a limitation of a remainder after an estate to any number of persons for their joint lives, but to apply to those cases only where the estate is given to one for the life or lives of persons unconnected with the legal estate,'^ and such is, no doubt, an accurate construction of the section, for where a vested remainder in fee is limited after an estate to A. for the joint lives of B., C, D., E., and F., the remainder takes effect in possession on the death of the shortest life of such persons in being. Estates pur autre vie, how Limited at Common Law. At common law an estate pur autre vie might have been limited to endure (i ) during the life of a single person; (2) during the joint lives of several per- sons; (3) during the life of the longest liver of several persons.^'' By the rules of the common law, these lives might be those of any number of persons in esse. Section 35, The Real Property Law. The section under review is the complement of the preceding section relating to limitations on estates pur autre vie. It provides for a case where a remainder is limited on an estate for the longest life of more than two persons, and accelerates the remainder.^'' No Acceleration where a Limitation is Void as a Perpetuity. As remain- ders to persons not in being are contingent^® and suspend the power of alienation,!* it is obvious that a remainder to persons not in esse 1* Repealed, chap. 547, Laws of 1896. " c^. Chapl. Susp. Alien., §§ 360- 15 Chapl. Susp. Alien., § 362. 366, to the contrariwise. 18 Challis, 286. 18 Supra, pp. 219, 227. 19 Supra, pp. 246, 247, 250. 278 Remainders Accelerated. limited on an estate for the life of the longest liver of three or more persons would fall under the condemnation of section 32 of this act and not be saved by the provisions of this section, which pro- vides for the acceleration of vested remainders only, and is not in- tended to save a limitation which suspends the power of alienation unduly.^ 20 Cf. Purdy v. Hayt, 92 N. Y. 446 ; Woodruff v. Cook, 47 Barb. 304. Contingent Remainder on Term of Years. 279 § 36. Contingent remainder on term of years.— A contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited be such that the remainder must vest in interest, during the con- tinuance of not more than two lives in being at the crea- tion of such remainder, or on the termination thereof. Formerly i Revised Statutes, 724, section 20: § 20. A contingent remainder shall not be created on a term of years, un- less the nature of the contingency on which it is limited, be such that the remainder must vest in interest, during the continuance of not more than two lives in being at the creation of such remainder, or upon the termination thereof.21 Comment on Section 36, Supra. This section has reference to the 40th section of this act,^^ which permits, contrary to the common law, a contingent remainder of freehold to be limited upon a term of years.^ An estate of freehold could not at common law be created to commence in futuro,^ and as tenant for years had not a freehold estate, the effect of permitting a contingent freehold to be limited in remainder on a term of years would have been to put the feudal seisin in abeyance, where it would hang until the future solved the contingency and determined where it should vest.^ But a contingent remainder of freehold could be limited on an estate for life,^® as this did not interrupt the continuity of the seisin.^'' At common law the seisin never could be in abeyance,^* consequently no estate of freehold could be limited to commence in futuro.^ This old rule of the common law the revisers of 1829 entirely abrogated and permitted contingent estates of freehold to be limited to commence in futuro and on terms of years, livery of seisin being also abrogated.^" But, in fact, before the Revised Stat- 21 Repealed, chap. 547, Laws of 1896. ^7 An estate for life was always an 22 Infra; formerly i R. S. 724, § 24. estate of freehold ; supra, pp. 137, 190. 23 Cf. supra, pp. 25, 201. 28 Supra, pp. 24, 25. 2* Supra, pp. 24, 202 ; Jackson ex 29 Supra, pp. 24, 202. dem., etc. v. Dunsbagh, i Johns. Cas. ^ i R. S. 724, § 24 (now § 40, The 91, 95. Real Prop. Law), and i R. S. 738, 25 Willard in his Treatise on Real § 136 (now § 206, The Real Prop. Estate and Conveyancing, at p. 163, Law), and see Revisers' notes with gives a wrong reason for this rule of § 24, i R. S. 724, infra. Appendix II; the common law. Stoiber v. Stoiber, 40 A pp. Div. 156, 26 Challis, 93 ; Fearne, Conting. 160. Rem. 281 ; 2 Black. Comm. 171. 280 Contingent Remainder on Term of Years. utes, contingent remainders of freehold expectant on terms of years could be limited as a use or in a will,^* because then the legal estate resulted when not actually disposed of, or else was in feoffee to uses, and consequently the feudal seisin was not in abeyance. Thus, in- directly after the Statutes of Uses and Wills, a contingent freehold could be limited to take effect on the expiration of a term of years. But it will be remembered that all executory limitations of uses and all executory devises were subject to the former rule against per- petuities.^^ Contingent Remainders. The revisers of the statutes intended to obliterate all distinctions between conveyances operating as uses or devises and at common law.^^ They also intended to subject the creation of all expectant estates to the revised rule against a per- petuity.^* This section of the statute has a relation to both of these projected reforms; but by its terms it expressly relates only to con- tingent remainders and not to vested remainders. Vested Remainders. At common law a vested remainder could be limited expectant on a term of years, or, to speak more precisely, there was no objection to a limitation of an estate to a person in esse subject to a term of years.^^ An estate to A. for ten years, remainder to B., was really a conveyance of the whole fee to B., subject to A.'s term.^® If the term on the other hand was created before the reversioner parted with the residue of his fee, the act of transferring the reversion was not a transfer of a remainder, but an assignment or grant of a reversion. It was not a limitation of a remainder on a term of years.^'^ Where a vested remainder was limited on a term of years, livery of seisin could be made to termor,^* although livery of seisin in its old sense^^ was inappropriate to the creation of an estate for years, and indeed, if made, it would be prima facie a tortious feoffment. 31 Challis, 93. 36 cf. Challis, 6o, 6i ; Smith, Exec. ^^ Supra, p. 239. Int. chap. 4, §§ 245-257. 33 See the Revisers' notes to the 37 Tq constitute a remainder the sections of the article relating to the particular estate and the remainder creation and division of estates, must be limited at the same time. Part II, R. S., chap, i, tit. 2, art. I. See § 28, supra. 3* Cf. Henderson v. Henderson, 46 38 LJtt. § 60 ; 2 Black. Comm. 167. Hun, 509 ; but observe that this de- 39 in t^g gj j j^^ seisin related solely cision was reversed, 113 N. Y. i, and to estates of freehold. Challis, 47; the statement in the text confirmed. 2 Black. Comm. 314; Cruise Dig., tit. 88 Burt. Real Prop., § 833. i, § 22; id., tit. 8, chap, i, §§ 10, 12. Contingent Remainder on Term of Years. 281 Object of this Section 36. As the revisers distinctly permitted a con- tingent remainder of freehold {e. g., an estate to persons unborn) to be limited on a term of years/" by any conveyance, it was deemed necessary expressly to subject such a limitation to the rule against a perpetuity. An estate to A. for fifty years, if B. or C. (two living persons) shall so long live, and if not, then for the life of the sur- vivor of them, remainder to the right heirs of D. (D. then being without heirs of her body), would be a valid limitation under this section. A remainder in fee may be limited on a term of years to persons not in being,*^ provided it vest within the rule against per- petuities.*^ *o§ 40, infra; i R. S. 724, § 24; *2 § 36, The Real Prop. Law; Purdy Butler V. Butler, 3 Barb. Ch. 304, 310. v. Hayt, 92 N. Y. at p. 456. « § 37, The Real Prop. Law, for- merly I R. S. 724, § 21. I 282 Remainders in Fee on Term of Years. ' § 37. Estate for life as remainder on term of years. — No estate for life shall be limited as a remainder on a term of years, except to a person in being at the creation of such estate. Formerly i Revised Statutes, 724, section 21 : § 21. No estate for life, shall be limited as a remainder on a term of years, except to a person in being, at the creation of such estate.** Comment on this Section. This section amplifies the preceding sec- tion, and was intended to provide that in case the remainder limited on a term of years is contingent, because it is to persons not in esse, then such remainder must be limited in fee, and not for the life of any such person. This section does not preclude the limitation of a freehold remainder on a term to persons not in being when the re- mainder is created. Such freehold remainder must not, however, be a life estate, but a fee. The peculiar nature of terms of years gives an ambiguous mean- ing to reversions and remainders expectant on terms of years. In so far as such a reversion or remainder does not give an immediate title to the actual or physical possession during the continuance of the term, it may be regarded as being in fact a reversion or a re- mainder, and in this sense such estates are commonly styled rever- sions or remainders. But as the existence of the term does not pre- vent the first vested estate of freehold from being an estate of free- hold in possession, the reversion or remainder is then really one in possession subject to the outstanding term, unless the remainder in fee is to a person not in being.** *3 Repealed, chap. 547, Laws of 1896. « Challis, 60, 61, 67. Meaning of " Heirs " and " Issue." 283 § 38. Meaning of heirs and issue in certain remainders. — Where a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words " heirs " or " issue," shall be construed to mean heirs or issue, living at the death of the person named as ancestor. Formerly i Revised Statutes, 724, section 22: i 22. Where a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words " heirs " or " issue," shall be construed to mean heirs or issue, living at the death of the person named as ancestor.*'' Comment on this Section. The original revisers in their note to this section say: " * * * With respect to estates tail by im- plication, the effect of this provision is already attained by those sections,*^ but it is still necessary, as a distinct enactment, in order to embrace limitations of chattel interests, and those cases in which the remainder is limited on the death of a person to whom no estate is given." *'' In a note to sections 3 and 4, i Revised Statutes, 722, the original revisers had already explained the application of the principle, with reference to the decisions of our courts on the stat- utes of 1782 and 1786, converting entails into fees simple in this State. Prior to the statutes converting estates tail into fees simple, a limitation in a will to A. and his heirs, and, if he die without issue (or without heirs, etc.), then to B., a collateral heir of the first devisee in fee, was generally held to give A. an estate tail. This estate tail the New York statutes regarding entails converted into a fee simple, with the effect of cutting off B.'s remainder in case A. died without issue. The courts of New York, after the statutes in question, endeavored to support B.'s remainder as an " executory devise," on a fee determinable at A.'s death without issue,*^ although formerly it had been well settled by the common law that such a devise did create an " estate tail." ^ ^ Repealed, chap. 547, Laws of 1896. opinion) ; Van Home v. Campbell, *8 I R. S. 722, §§ 3, 4. 100 N. Y. at p. 311. ■*'' Revisers' note to § 22, 1 R. S. *^ Rathbone v. Dyckman, 3 Paige, 724; Appendix II, infra. 9, 30; revisers' note to i R. S. 722, *8 Fosdick v. Cornell, i Johns. 440 ; § 2 , infra, Appendix II ; 4 Kent Jackson v. Staats, 11 id. 337. See Comm. 273. Ch. Kent's opinion in cases cited by Ruger, J. (dissenting Anderson v. Jackson, 16 Johns. Ch. 284 " Dying without Issue." "Dying without Issue." In respect of testamentary limitations of interests in personal property, the words " dying without issue " were, at common law, construed to mean issue living at the death of the ancestor.^" In England, in respect of limitations of real estate, the decisions were to the effect that the same words implied an in- definite failure of issue.^' As the former rule against a perpetuity did not permit of an executory limitation after an indefinite failure of issue, unless such limitations were subsequent to an estate tail, the courts of England, in an effort to sustain devises or limitations over, finally held, in respect of limitations of real property, that the words " dying without issue," indicated an intention to create an estate tail.^^ A remainder or an executory limitation on an estate tail did not offend the Rule against perpetuities.^^ When estates tail were, by the statutes of New York, converted into fe'es simple, the effect was to cut off a remainder limited thereon.^* Then, as stated above, the courts of New York retreated from the English doctrine. The hardship of the statute of 1786 was remedied by the Revised Statutes, so as to vest a remainder on the death of a first taker without issue.^^ The present section of this act (38) gives the words " dying without issue " the same meaning in limitations of both real and personal estates.^" This Section has no Reference to Wills before 1830. This section of the Revised Statutes has no reference to wills of persons dying prior to 1830, although it does control wills made before 1830, when they are published after that time.^^ 382, was never approved by the best ^3 Challis, 146 ; but if the limitation property lawyers {cf. Lott v. Wyckoff, had to take effect as a use or devise 2 N. Y. 3SS). An executory devise after an indefinite failure of issue, it to take effect at the death of first was void as a perpetuity (4 Kent taker was valid, but invalid after an Comm. 274, note 9). indefinite failure of issue (note 9, 4 54 Lott v. Wyckoff, 2 N. Y. 355 ; Kent Comm. 274), unless it created Barlow v. Barlow, id. 386. an estate tail. 6B i R_ s_ 722, § 4, now § 22, The 80 Rathbone v. Dyckman, 3 Paige, Real Prop. Law. 9, 30; 4 Kent Comm. 261. B6 Norris v. Beyea, 13 N. Y. 273; 51 Rathbone v. Dyckman, 3 Paige, Matter of N. Y., Lackawanna, etc., 9, 30- R. R. Co., 105 id. 89, 96; Matter of B2 Pells v. Brown, Cro. Jac. 450; Moore, 152 id. 602; Farmers' Loan & Gardner v. Sheldon, Vaughan, 259; Trust Co. v. Ferris, 67 App. Div. i. s. c, Tudor, Lead. Cas. Real Prop. ^7 Dg Peyster v. Clendining, 8 625, 639. Paige, 29s ; affd., 26 Wend. 23 ; Bishop Meaning of " Issue," etc. 285 Meaning of " Heirs of Body.'' In some cases, the words " heirs of A.'s body," in a will, mean direct descendants, not collaterals.^ " Heirs." " Heirs " may mean, in a will, children or descendants.^^ Issue. Issue in its general sense means all descendants, but this meaning may be restricted by context so as to mean children.*"* Heirs or Issue of Such an One. The words " heirs or issue of such an one " refer to those who are living at the death of the person named as ancestor." When " Issue " Word of Limitation. In a devise of an estate " to A. and his issue forever," the words are words of limitation, and not of purchase.®^ But if there is a trust or estate for A., remainder to issue of A., the issue take as purchasers.*' V. Bishop, 4 Hill, 138; Emmons v. 244; Palmer v. Horn, 84 id. 516, 519; Cairns, 3 Barb. 247; Lytle v. Bev- N. Y. Life Ins. Co. v. Viele, 161 id. eridge, 58 N. Y. 592, 601; Maurice v. 11; Matter of United States Trust Graham, 8 Paige, 484. Co., 36 Misc. Rep. 378; Matter of 58 Matter of Moore, 152 N. Y. 602, Devoe, 66 App. Div. i ; Emmet v. 609; Drake v. Drake, 134 id. 220, 225; Emmet, 67 id. 183; Harrison v. Snider v. Snider, 160 id. 151, affg. 11 McAdam, 38 Misc. Rep. 18; Wilson App. Div. 171. V. Wilson, 76 App. Div. 32. 69 Bundy v. Bundy, 38 N. Y. 410, ei § 38, The Real Prop. Law ; Arnot 419; Canfield v. Fallon, 43 App. Div. v. Arnot, 75 App. Div. 230, 234; Sab- 561, and cases cited, p. 565 ; Matter of baton v. Sabbaton, 76 id. 216. Cramer, 59 App. Div. S41 ; affd., 170 62 Hilliker v. Bast, 64 App. Div. N. Y. 271 ; Tudor, Lead. Cas. Real 552. Prop. 615. 63 Sabbaton v. Sabbaton, 76 App. 60 Chwatal v. Schreiner, 148 N. Y. Div. 216 ; Moore v. Littel, 41 N. Y. 66. 683, 688; Soper v. Brown, 136 id. 286 Limitations of Chattels Real. § 39. Limitations of chattels real. — All the provisions con- tained in this article, relative to future estates, apply to limitations of chattels real, as well as of freehold estates, so that the absolute ownership of a term of years shall not be suspended for a longer period than the absolute power of alienation can be suspended in respect to a fee. Formerly i Revised Statutes, 724, section 23 : § 23. All the provisions contained in this Article, relative to future estates, shall be construed to apply to limitations of chattels real, as well as of free- hold estates, so that the absolute ownership of a term of years, shall not be suspended for a longer period than the absolute power of alienation can be suspended, in respect to a fee.^ Chattels Real. At common law chattels real were such interests in land as were not estates of freehold.® Thus, terms of years, from the precarious nature of termor's legal interest until he was finally protected by statute, were at an early time classed among chattels, even though the term might endure for a thousand years.®^ Other chattels real were the interests of tenants by statutes staple and merchant.®'^ Of chattels real at common law, terms of years alone remain of importance in the law of New York.^ Permissible Limitations at Common Law. After the Statute of Wills, chattels real, or terms of years, might be given by executory devise to one for life with a g'MOjj-remainder over to another person, which, when executed in possession by the termination of the precedent life estate, carried with it the legal estate for the residue of the term.^* But such an executory limitation of chattels real was not possible in a deed, because it could be effected only by the Statute of Uses, which had no reference to chattel interests in esse. Consequently execu- tory interests in chattels could be effected by deed only by settlements in trust.'"> 64 Repealed, chap. 547, Laws of 1896. N. Y. 287, 295 ; Bennett v. Grain, 41 65 Challis, 47 ; Co. Litt. ii8b; Whart. Hun, 183. Conv. 69 ; Putnam v. Westcott, 19 69 Challis, 138, 139, citing Matthew Johns. 73, 76; see under § 23, supra. Manning's Case, 8 Rep. 94; Lampet's 66 Challis, 46 ; supra, pp. 141, 191. Case, 10 Rep. 46 ; Fearne, Con- 6'? Co. Litt. ii8a; 2 Black. Comm. ting. Rem. 401; et vide p. 276 supra, 386; Burt. Real Prop., chap. 5; Chal- under § 34; Williams, Pers. Prop. lis, 48. 186, 187. 68 The Real Prop. Law, § 23, .s«/>»-o; 70 Challis, 139; Williams, Pers. People ex rel. Higgins v. McAdam, 84 Prop. 188 ; supra, p. 276. Limitations of Chattels Real. 287 Object of This Section 39. The Revised Statutes and this act per- mit such executory interests in terms of years, or chattels real, as can be created in freehold estates, and they may be created to the same extent by deed or by will.''^ Another manifest object of this section was to control the limitations of executory interests in long terms of years ; otherwise owners of property might have granted a term of a thousand years, with or without a nominal rent,''^ with the design that termor should so limit the term that it became in- alienable beyond two lives in being and an actual minority. In this manner real property might, in fact, have been rendered inalien- able beyond the statutory period." Trusts of Chattels Real. Trusts of chattels real are now within the Article of this Statute on Uses and Trusts.''* Chattels Real not within Chattel Mortgage Acts. Notwithstanding terms of years are classed among chattels for many juridical pur- poses, they are not within the purview of the Chattel Mortgage Act, requiring immediate change of possession or record, etc.''^ Chattels Real Bound by Judgments. Chattels real are now bound by the docketing of judgments and decrees.'^® Ti S 39 supra. The Real Prop. Law. 136, § 5 ; State Trust Co. v. Casino ""^ Supra, pp. 143, 145. Co., 18 Misc. Rep. 327; Booth v. ''s See under § 34, supra (The Real Kehoe, 71 N. Y. 341. Prop. Law), how far executory inter- ™2 R. S. 182, § 96 (repealed, chap, ests in terms could be rendered in- 417. Laws of 1877) ; 2 R. S. 359, § 3 alienable at common law. (repealed by chap. 245, Laws of 1880) ; ■7* Bennett v. Rosenthal, 11 Daly, 91. § 1251, Code Civ. Proc. ^5 Chap. 279, Laws of 1833 ; 2 R. S. 288 Creation of Future and Contingent Estates. § 40. Creation of future and contingent estates. — Subject to the provisions of this article, a freehold estate as well as a chattel real may be created to commence at a future day; an estate for Hfe may be created in a term of years, and a remainder limited thereon; a remainder of a freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years; and a fee or other less estate, may be limited on a fee, on a con- tingency which, if it should occur, must happen within the period prescribed in this article. Formerly I Revised Statutes, 724, section 24: § 24. Subject to the rules established in the preceding sections of this Arti- cle, a freehold estate, as well as a chattel real, may be created, to commence at a future day; an estate for life may be created, in a term of years, and a remainder limited thereon; a remainder of a freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years ; and 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.^^ Object of Section 40. The object of this section is apparent. At common law, owing to the necessity of an immediate livery of seisin, freehold estates could not be created to commence in possession at a future day except by way of remainder.'^* Otherwise the seisin would have been placed in abeyance, which the common law for- bade.™ In more modern times the rule was, however, in effect abol- ished, since an estate in futuro might be created by devise or by any conveyance operating under the Statute of Uses.*" The revisers' plan was to validate estates created by any type of conveyance, pro- vided only that the estate vested within the time- allowed for the vest- ing of contingent or future estates.*-' Abeyance of the Seisin. Abeyance of the seisin by act of the parties was not tolerated by the common law,*^ and to a certain extent this operated as a rule against perpetuities. Blackstone's statement, that a fee might be in abeyance by act of the parties,** has been, even ''T Repealed, chap. S47, Laws of 1896. see Revisers' note to i R. S. 723, § 10; ''^ Supra, pp. 24, 202. also pp. 38, 202, supra. ''^ Supra, p. 24. *i Supra, pp. 48, 195, 280. 80 2 Black. Coram. 166 ; Jackson v. *2 Challis, 77, 78 ; i Prest. Est. 216 ; Dunsbagh, i Johns. Cas. 91, 95 ; and supra, pp. 24, 31, 279. *3 2 Black. Comm. 107. Creation of Future and Contingent Estates. 289 lately, criticised,** and it is still sometimes said that a fee may not be in abeyance.®^ Terms of Years. A term of years (which is the chattel real re- ferred to in this section) could at common law be created to com- mence in futuro, although an estate for life which was a freehold estate could not commence in futuro without the intervention of a precedent estate.*" But an estate of freehold in a chattel real in esse could not begin in futuro without the intervention of a precedent estate.*^ We have just stated, under section 39 of this act, and also tinder section 34,*® that originally it was held that termor could not limit an estate for life and a remainder over in a term of years. But this was soon changed by permitting executory bequests and trusts of terms.®^ Contingent Remainder May Be now Limited on a Term of Years. Under this section a contingent remainder may be now limited on a term of years, although a contingent remainder of freehold could not, at common law, be created expectant on a term of years.®" A vested remainder of freehold expectant on a term of years is ambiguous, for such a remainder may be the estate itself subject to the term.®' Yet it is very apparent what is meant by limiting a vested remainder on a term of years, as it has become customary to regard the rever- sion as a remainder expectant on a term on account of the postpone- ment of physical possession.®^ Fee May be Mounted on a Fee. At common law a fee could not be mounted on a fee, as it was said f^ that is, when a grantor had once disposed of a fee simple the nature of the estate granted pre- cluded any further limitation of the fee.®* The grantor had, in legal, theory, disposed of all that he possessed, and, therefore, could dis- pose of nothing more. But in equity the rule was otherwise,®^ and, ** Van Nostrand v. Marvin, i6 App. ^ Supra, pp. 276, 286. Div. 28, 32. 90 See supra, under § 36, The Real 85 Wood V. Taylor, g Misc. Rep. Prop. Law. 640; Heeney v. Brooklyn Benevolent ®i Challis, 61; Goodright v. Cornish, Society, 33 Barb. 360; cf. supra, un- i Salk. 226; supra, Intro, p. 24, and der § 32, The Real Prop. Law. under § 28, supra, p. 201. ^ 2 Black. Comm. 143 ; Young v. ®^ Cf. Durando v. Durando, 23 N. Y. Dake,. 5 N. Y. 463 ; Taggard v. Roose- at p. 332. velt, 2 E. D. Smith, 100 ; supra, p. 24. ®3 Supra, pp. 23, 38, 47, 271. 8'' I Prest. Est. 217 ; and see under ®* Co. Litt. i8a. S SO, The Real Prop. Law, infra. ^ Supra, pp. 26, 29. 88 The Real Prop. Law, § 34- 19 290 Creation of Future and Contingent Estates. after the Statute of Uses had fastened the nature of the former use to the legal possession or title, a fee might be mounted on a fee by the contrivance of uses,^^ and, after the Statute of Wills, by execu- tory devises,®'' always provided these executory limitations were within the rule against a perpetuity.** Where an ulterior limitation over in fee is to take effect upon a contingency, such as may not happen in the life of a living grantee, the precedent estate will gen- erally be a base fee and the ulterior limitation a substituted fee and not a remainder. This section now tolerates in practice such limi- tations.** The object of this section was to abrogate the fundamental difference between conveyances bad at common law, but good under the Statutes of Uses and Wills ; and to permit a fee to be mounted on a fee^ by deed or grant, which took the place of the former deeds of bargain and sale and of a feoffment with livery of seisin as a legal conveyance. In this way a limitation could be directly made by deed, whereas it must formerly have been made as a use or devise in order to be valid. But the limitation of a fee upon a fee must now conform to the rule against perpetuities.^ 9^ Van Home v. Campbell, loo N. Div. 64 ; Matter of Martens, 16 Misc. Y. pp. 292, 293, et supra, p. 38. Rep. 245 ; Matter of Cramer, 170 N. '^ Van Home v. Campbell, 100 N. Y. 271 ; Van Home v. Campbell, 100 Y. pp. 292, 293, et supra, p. 39. id. at p. 292 ; Williams v. Jones, 166 98 See under § 32, supra, p. 239. id. pp. 538, S39 ; Rudd v. Cornell, 58 99 Lyons v. Ostrander, 167 N. Y. App. Div. 207, 216. So after a fee to 135. trustees, Stevenson v. Lesley, 70 N. Y. 1 Sherman v. Sherman, 3 Barb. 385, 512; Losey v. Stanley, 147 id. 560; 387 ; Mott V. Ackerman, 92 N. Y. at Van Nostrand v. Marvin, 16 App. Div. p. 549; Matter of Dodge, 40 Hun, at 28; cf. Amory v. Lord, 9 N. Y. 403, p. 449; Matter of McCaffrey, 50 id. 413. at p. 374; Matter of Moore, 152 N. 2 ^ott ^ Ackerman, 92 N. Y. at Y. 602; Chapman v. Moulton, 8 App. p. S49; § 32, The Real Prop. Law. Alternative Future Estates. 291 § 41. Future estates in the alternative. — Two or more future estates may be created to take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it, and take effect accordingly. Formerly i Revised Statutes, 724, section 25. § 25. Two or more future estates, may also be created, to take effect in the alternative, so that if the first in order shall fail to vest, the next in succes- sion shall be substituted for it, and take effect accordingly.^ Limitations with a Double Aspect. This section refers to limitations with a double aspect.'* Even by the common law several fees might be limited in the alternative by way of remainder upon the same particular estate upon such contingencies that not more than one of them could by possibility happen.^ From the revisers' note to the original section, citing Loddington v. Kime, it is apparent that they intended to preserve the principle and to distinguish the in- stance from one where some interest vested, and was then displaced by reason of the happening of a contingency specified in the limita- tion.^ Such alternative limitations did not necessarily prolong the restraint upon alienation beyond the period allowed by the Revised Statutes.'' Limitations with a double aspect formerly related to estates in fee, and the rule as stated was applied to them at common law. But there is nothing to prevent the rule, as now stated in the above section, from being applied to limitations of future life estates, such as " estate to 'A.' for life, remainder to ' B.' for life, and if ' B.' die before 'A.' remainder to ' C for life, remainder to ' D.' in fee." * When Valid within the Rule against Perpetuities. Where, however, a limitation is made to take effect on two alternative events, one of which is too remote and the other valid as within the prescribed limits, although the gift is void so far as it depends on the remote event, it will be allowed to take effect on the happening of the alter- native one.® 3 Repealed, chap. 547, Laws of 1896. * The Real Prop. Law, § 40. * Called in Revisers' note to the sub- '' Hennessy v. Patterson, 85 N. Y. stituted section " contingencies in a at p. gg. double aspect." 8 gee under i 33, The Real Prop. 5 Challis, 61, citing Loddington v. Law, supra, p. 269. Kime, i Salk. 224 ; i Ld. Raym. 203 ; 9 Schettler v. Smith, 41 N. Y. 328, Fearne, Conting. Rem. 373; Hennessy 336, citing Lewis, Perp. 501, 502. V. Patterson, 85 N. Y. 91, 99. 292 Future Estates and Improbable Contingencies. § 42. Future estate valid though contingency improbable. — A future estate, otherwise valid, shall not be void on the ground of the improbability of the contingency on which it is limited to take effect. Formerly i Revised Statutes, 724, section 26: § 26. No future estate, otherwise valid, shall be void on the ground of the probability or improbability of the contingency on which it is limited to take effect.io Object of This Section. The note of the revisers on the original of this section shows that they intended to abolish a very curious subtlety of the common law : " That the law will not contemplate a double possibility, or a possibility upon a possibility." ^^ Challis states that this doctrine was applied with very little consistency, and that it was questioned by Lord Nottingham.^^ The revisers termed it " a metaphysical distinction worthy only of the school-men with whom it originated." ^^ In the foregoing section the doctrine itself was swept away, as the revisers deemed it to be still applicable to certain contingencies upon which remainders were limited.^* That they were correct in this supposition is shown by the fact that it was finally held in England, in the year 1889, that Coke's alleged dictum was a positive rule of the common law.^^ The comment of the revisers on this section is significant of their whole reform when they say : " If a remainder does not restrain the alienation of the estate beyond the period allowed by law, but if it take effect at all, must happen within the limits prescribed, of what consequence is it or can it be, whether the contingency on which it is limited be near or remote ? probable or improbable ? " Application of This Section to a Limitation of a Remainder to a Corpora- tion to Be Formed. The favorite instance of an illegal possibility upon a possibility at common law was a remainder to a corporation not in being at the time of the limitation.!^ Yet, in equity, a devise 10 Repealed, chap. 547, Laws of 1896. 2, §§ 4-8 ; Jackson ex dem. NicoU v. 11 Co. Litt. 2Sb ; id., 184a ; i Rep. Brown, 13 Wend. 437, 442. iS6a ; 10 id. sob. " Whitby v. Mitchell, 42 Ch. D. 12 Challis, 92, citing Duke of Nor- 494> 44 id. 85, 90 ; and see 59 Alb. Law folk's Case, 3 Ch. Cas. i, at p. 29. Jour, at p. 353, an article by the IS Note to I R. S. 724, § 26 ; infra, author on Prof. Gray's mistake about Appendix IL this rule. 1* Citing Fearne, Conting. Rem. 378 ; i« Fearne, 250; 2 Co. Sib; 10 id. 2 Rep. Sib; Cruise Dig., tit. 16, chap. 31b; Challis, 91; i Prest. Abst 128; 2 Wooddeson, Law Lectures, 121. Future Estates and Improbable Contingencies. 293 to a charitable corporation to be formed was good.^^ By virtue of this section of the Revised Statutes a devise to a corporation to be formed is now good by way of remainder/^ as it was by way of ex- ecutory devise before the Revised Statutes.^^ It is, however, to be observed that the cases make a distinction between a present devise to a corporation not yet formed and a devise to such a corporation to take effect in future.'^'' A present devise is still said to be void,^^ whereas a devise to vest in futuro is valid.^^ But, as a devise to a corporation not yet formed ought never to be held a present or vested devise,^^ the distinction between a " future " and a " present " devise does not seem very important, now that there may be a legal limitation to a corporation to be formed, provided that the devise vest within the time prescribed by the rule against a perpetuity.^* Section 47 of This Act. It may be well that the professional reader should consider, in connection with the foregoing section (42) of this act, section 47, which tolerates future estates limited on con- tingencies not permitted at the common law.^^ IT Wilmot's Opinion, 16 ; Burrill v. 22 jhe Real Prop. Law, § 32, supra, Boardman, 43 N. Y. at p. 260. p. 257. 18 Booth V. Baptist Church, 126 N. 23 Shipman v. Rollins, 98 N. Y. 311, Y. at p. 237; Matter of Rounds, 25 328; Lougheed v. The D. B. Church, Misc. Rep. loi, 107; Jesup v. Pringle 129 id. 211, 216. Memorial Home, 27 id. 427. 24 People v. Simonson, 126 N. Y. at 19 Inglis V. Sailors' Snug Harbour, p. 307; Tilden v. Green, 130 id. at p. 3 Pet. 99. 47; Cruikshank v. Home for the 20 Ould V. Washington Hospital, 95 Friendless, 113 id. 337, 350, 352; Mat- U. S. at p. 313 ; supra under § 32, The ter of Rounds, 25 Misc. Rep. loi, 107 ; Real Prop. Law, pp. 257, 258. Jesup v. Pringle Memorial Home, 27 21 Campbell v. Rawdon, 18 N. Y. id. 427 ; Allen v. Stevens, 33 App. Div. 412, 417; Lougheed v. The D. B. 385; revd., 161 N. Y. 123. Church, 129 id. 211, 215; Leslie v. ^ Vide infra, under §§ 47, 129, The Marshall, 31 Barb. 560; supra, p. 258, Real Prop. Law. under § 32, The Real Prop. Law. 294 Conditional Limitations. § 43. Conditional limitations. — A remainder may be limited on a contingency, which, if it happens, will operate to abridge or determine the precedent estate; and every such re- mainder shall be a conditional limitation. Formerly i Revised Statutes, 725, section 27: § 27. A remainder may be limited on a contingency, which, in case it should happen, will operate to abridge or determine the precedent estate; and every such remainder shall be construed a conditional limitation, and shall have the same effect as such a limitation would have by law.28 Comment on This Section. In the observations on a prior section of " The Real Property Law," the confused use of the term " condi- tional limitation " has been adverted to, and it has been pointed out that the revisers by this section expressly confine the future employ- ment of the term " conditional limitation " to all such limitations of estates as serve at once to define the event or contingency abridg- ing a precedent estate created at the same time, and substituting a posterior estate for the estate thus abridged or determined;-" thereby intending to avoid confusion in the future.^ The definition contained in this section of the statute is not surplusage or declara- tory. It settled a disputed usage. The former distinction between a condition subsequent and a conditional limitation was this : a grant to "A." for life, but if " B." should return from Rome, living "A.," then the grantor to re-enter was a grant on a condition subsequent ; but a grant to the use of "A.," until " B." return from Rome, and then to " C." in fee, was a conditional limitation.^^ The Old Law. At common law a remainder could not be limited on a contingency which would abridge the precedent estate. It must await the regular and orderly termination of such precedent estate.'" Subsequently to the Statutes of Uses and Wills, a future estate might be limited to take effect in derogation of a precedent estate, created at the same time by means of a " shifting use," or by means of an 26 Repealed, chap. 547, Laws of 1896. 3" See supra. Introductory Chapter, 27 § 21, p. 161, supra. p. 25 ; and the Revisers' note to i R, S. 28 Cf. Challis, 199; Smith, Exec. 725, § 27 ; i Prest. Est. 91; Fearne, Int., § 148 ; Gray, Rest, note a to § 22. Conting. Rem. 270 ; Challis, 62 ; Cruise 29Strahan, Prop. 187; Co. Litt. Dig., tit. 16, chap. 2, §§ 16, 17; Smith, 203b, note; Williams v. Jones, 166 Exec. Int., § 149a; Goodeve, Real N. y. 522, S37. Prop. 191 ; supra, p. 254. Conditional Limitations. 295 " executory devise," and such limitations were called conditional limitations.^^ Object of This Section 43. As the distinction between common-law remainders and shifting uses and executory devises has been anni- hilated by the Revised Statutes,^^ it was deemed expedient to abro- gate expressly the old rule relating to estates in remainder and to define " conditional limitations " in such a way as to make it rele- vant to all limitations which take effect in derogation of some prece- dent estate created at the same time.^^ Thus a " conditional limita- tion " now involves all those limitations formerly termed " shifting uses " and " shifting devises," and possibly also contingent remain- ders operating to abridge the precedent estate.** It is evident, ftrst, that all such " conditional limitations " are now within the reason of the rule against a perpetuity, quite as much as were their proto- types " shifting uses " and " devises." Application of This Section 43. It is also obvious that this section has reference to the sections of the statute defining remainders,*^ and that the words " precedent estate " refer to an estate limited in the same instrument as the remainder, and not to an estate previously limited. But this section does not allow a limitation over where grantor parts with the whole fee, and has only- a bare possibility of reverter for breach of a condition subsequent. Otherwise estates might be limited over to a third person in violation of the principle, that no one but the grantor and his heirs may enforce conditions subsequent contained in grants in fee.*^ Formerly a possibility of reverter on such limitations was not devisable,*'^ and it is not now otherwise under our Statute of Wills. It is apparent, therefore, that by " conditional limitations " the revisers in this section had mainly in view such limitations on condition as were theretofore usual in conveyances to uses, or in executory devises, and that 31 Revisers' note, id. supra; i Prest. any former remainders limited on con- Est. 92; Smith, Exec. Int., § 149a; tingencies. Cf. Challis, 62, 63. Fearne, Conting. Rem. 272, 381, note; 35 -phe Real Prop. I-aw, §§ 27, 28. supra, p. 160. 36 Nicoll v. N. Y. & Erie R. R. Co., 32 Supra, pp. 47, 202. 12 N. Y. 121, 131 ; Towle v. Remsen, 33 Crooke v. County of Kings, 97 70 id. 303, 313 ; Countryman v. Deck, N. Y. at p. 449; cf. Gray, Rest., § 22, 13 Abb. N. C. no, 112. note a ; Smith, Exec. Int., § 148, 3'? Challis, 153 ; Prest. Shep. Touch. 3* It is doubtful whether it includes 120 ; 2 Black. Comm. 156 ; supra, p. 164; infra, p. 313. 296 Conditional Limitations. were known sometimes as " conditions in deed " or in law, but more accurately as " conditional limitations." ^® Contingencies. The contingencies upon which a conditional limita- tion may be based are then determined generally by the old law re- lating to shifting uses and devises, in so far as that law is not modi- fied inferentially by particular provisions of the Revised Statutes. ^^ Contingencies as the basis of limitations were not much favored by the common law.*" It was not until after the Statutes of Uses and Wills had made the doctrines of equity the basis of the law of legal estates that even contingent remainders flourished on a sound basis.. Long subsequently the nature of contingencies, which might be the basis of legal limitations, was discussed by Mr. Fearne.*'^ But as " conditional limitations," referred to in this section, were former shifting uses and devises, and contingent remainders,*^ it is to the old law of " uses " and " devises " and possibly some contingent re- mainders that we still must look for allowable contingencies in lim- itations of future estates. These contingencies are discussed only negatively by writers, as they are as wide as the entire range of pos- sibilities in human affairs. (I) The contingencies always arise by the terms of the limitation. (II) They must not be illegal acts or events. (Ill) They must not be too remote.*^ Generally in present practice no executory or conditional limitations are of more frequent occurrence than those which are limited in defeasance of a prior estate created at the same time. Limitations over on Condition Subsequent. It has been stated that no limitation over can be made where grantor has only a bare possibil- ity of reverter.** But on limitations of estates for life, or years, a condition may be annexed, and on the breach of it the estate may be limited over to a third person.*^ So a contingent remainder in 38 Vide, p. i6l, supra, under § 21, <3 a conditional limitation, as it cre- The Real Prop. Law and comments ates a future estate in derogation of a under § 28, The Real Prop. Law; 2 precedent estate, must provide for Black. Coram. 155; Challis, 199; Gray, vesting within the rule (§ 32, supra). Rest, on Alien, note a to § 22; Smith It is otherwise with common-law con- Exec. Int., § 148. ditions in conveyances, which do not 39 Vide supra, under § 28, The Real provide for limitations over on breach Prop. Law. of condition. Supra, pp. 170, 171. *» Williams, Real Prop. 263, seq.; ** Supra, p. 295, this section. sed vide supra, p. 210. 45 Goodeve, Real Prop. 191 ; Fearne, *i Chap. 2, Conting. Rem. 272, 381, note. *2 Cf. Challis, 58. Conditional Limitations. 297 fee may be now created on a prior remainder in fee to take efifect in case the first taker die without issue, or before full age. Such ulterior remainders are now conditional limitations.*^ Limitations on Void Estates or Estates Which Do Not Arise. As a rule estates well limited after void estates, or on estates which do not arise, are accelerated and do not fail.*'^ Conditions Involving Alienation. A limitation to a person absolutely, with an invalid restriction upon alienation, must be distinguished from a limitation until attempted alienation and then remainder over ■ to a stranger. In the latter case, if the primary limitation is for life the limitation over is valid, and in this State a similar limitation of a fee may be now valid since the Revised Statutes.** *6§§ 32, 38, 40, The Real Prop. ^'^ Supra, under I 30, p. 232, and Law; Van Home v. Campbell, 100 § 48, p. 310, infra. N. Y. 292 ; Williams v. Jones, 166 id. *^ Supra, p. 109, under § 3, The S38, S39; Rudd V. Cornell, 58 App. Real Prop. Law. Div. 207, 216. 298 When " Heirs " Take as Purchasers. § 44. When heirs of life tenant take as purchasers. — Where a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate in the same prem- ises is given, the persons who, on the termination of the life estate, are the heirs or heirs of the body, of such tenant for life, shall take as purchasers, by virtue of the remainder so limited to them. Formerly i Revised Statutes, 725, section 28: § 28. Where a remainder shall be limited to the heirs, or heirs of the body of a person to whom a life estate, in the same premises, shall be given, the persons who, on the termination of the life estate, shall be the heirs, or heirs of the body of such tenant for life, shall be entitled to take as pur- chasers, by virtue of the remainder so limited to them.*^ Rule in Shelley's Case. This section abolished the rule of construc- tion known as the rule in Shelley's case.^* But as that rule is still applicable to devises and conveyances taking effect before January I, i830,''i some knowledge of the rule and its limitation is indis- pensable to conveyancers. Shelley's case^^ is said to be more often talked of than read,^^ and yet it probably occupies the most im- portant place in the common law relating to conveyances. Very briefly stated, the main issue was whether Nicholas Wolfe, the tenant of Richard Shelley, had, under a demise, a better right to pos- session of the close than Henry Shelley (2d), for the case was one in ejectment. It appears, that one Edward Shelley, the father of two sons, Henry Shelley (ist) and Richard Shelley, being tenant in tail, suffered a recovery under a covenant,^* that the recovery should be to the use of himself for life, and after his decease to the use of certain persons for twenty-four years, and thereafter to the ■use of the heirs male of the body of himself lawfully begotten, and of the heirs male of the body of such heirs wide lawfully begotten, 49 Repealed, chap. 547, Laws 1896. ^ZThis case is properly entitled, 50 See Revisers' note to this section, " Wolfe ex dem. R. Shelley v. Henry I R. S. 725, § 28;. 32 App. Div. 423; Shelley (2d)," I Rep. 93; Serj. — —StrahaaJProp^ 143- Moore's Rep. 136; Dyer, 373b, pi. 15; 51 Edwardsvr-BisJiopr~4-NrTr"^; Tudor, Lead. Cas. Real Prop. 589. y Brown v. Lyon, 6 id?^^, 42oT~Dli!t=- 53 Challis, 132. stead V. Olmstea^TTT^TB I Spader v. 54 xhe covenant controls the asscr- Powers, 56 Hun, IS3 1 Brown v. ance made or effected by a recovery. Wadsworth, 32 App. Div. 423; revd., 168 N. Y. |2S- Rule in Shelley's Case. 299 remainder over. The recovery was suffered. At the time of the re- covery, Henry Shelley (ist), the elder son of Edward, was dead, leaving a daughter Mary, and a son afterward Henry (2d) eii ventre sa mere. Laying aside several nice practice questions under the old law (for Edward Shelley, the old tenant in tail, had himself died after judgment, but before execution), the main question of law involved in the case was whether, as Edward Shelley had an estate of freehold, and by the same assurance an estate was limited to his heirs male, the heirs male took as purchasers. If so, his second surviving son, Richard Shelley, claimed the estate as a vested remainder against the unborn son of his elder brother.^^ On the other hand, counsel for Henry Shelley (2d) claimed that, as a proposition of law, whenever an ancestor took an estate of freehold, and by the same instrument an estate is limited by way of remain- der (mediately or immediately) to his heirs in fee or in tail, the heirs take nothing as the words are words of limitation and not of purchase. The court so held, and Henry Shelley (2d's) right to enter was, therefore, held good, he being both heir general and heir male to his grandfather, Edward Shelley, who suffered the recovery. Former Application of the Rule in Shelley's Case. The application of the rule at common law required that the ancestor take an estate of freehold ; ^^ that the subsequent limitation be to heirs general or special, and that both estates arise by the same instrument. But the interposition of one or more intermediate estates did not pre- vent the application of the rule.^'^ The rule was also applied in the construction of equitable estates before the Revised Statutes,^^ but not where the ancestor had an equitable estate and the remain- der was a legal estate.^* The rule in Shelley's case was applied in 55 At common law, independently of 56 Campbell v. Rawdon, 18 N. Y. Stat. 10 and ii William III, chapter 412, 420; Moore v. Littel, 41 id. 66, 16, a posthumous child could not take 71 ; Spader v. Powers, 56 Hun, 153 ; a remainder limited on the death of Strahan, Prop. 144. the father. See Revisers' note to i 57 QjaHig^ 1^3, 134, and cases there R. S. 725, § 31 ; Steadfast ex dem. cited. Nicoll V. Nicoll, 3 Johns. Cas. 18. 5S yi^ig infra under article III of The Stat. 10 and 11 William III was The Real Prop. Law. repealed in 1788 in New York, and 59 Striker v. Mott, 28 N. Y. 82, 91 ; until the Revised Statutes there was Smith v. Scholtz, 68 id. 41, 61 ; Sea- no similar re-enactment; cf. Willard, man v. Harvey, 16 Hun, 71; Brown Real Est. & Conv. 171, and see under v. Wadsworth, 32 App. Div. 423. § 46, The Real Prop. Law, infra. 300 Rule in Shelley's Case. the construction of limitations of estates in New York prior to the Revised Statutes.^" The rule was, however, subject to certain re- strictions : it was held not to apply to executory marriage settle- ments.'i or to cases where the remainder was limited to " sons " or children of the person taking the precedent freehold,^^ or when limited to the " issue " of such person,^^ or to " their male heirs that they now have or may hereafter have." ** Seasons for the Rule in Shelley's Case. The reasons assigned for the foundation of the rule in Shelley's case are various : (i) That it prevented heirs from taking as purchasers and thus preserved the rights of the feudal superiors over successions to estates; (2) that it prevented an abeyance of the seisin;^' (3) the interest of heirs themselves, as otherwise the ancestor might hat their contingent remainder to their prejudice,^ for if it was barred they could not claim the estate. But the real reason for the rule is conjectural.^^ Mr. Tudor, following Mr. Butler,^^ states that the rule itself was not even adjudicated in Shelley's case. But Fearne, Preston, and Challis^® state that this case is an express authority for the rule, and they are undoubtedly in the right. In the great case of Perrin v. Blake,™ Mr. Justice Blackstone discussed the reasons for the rule and its application to devises. Abolition of the Rule in New York. The revisers of the statutes of New York, deeming the rule not to be well founded or of universal 60 Seaman v. Harvey, 16 Hun, 71, ^ Revisers' note to i R. S. 725, 74; Brant v. Gelston, 2 Johns. Cas. § 28; Chrystie v. Mackaness, 19 N. Y. 384; Schoonmaker v. Sheely, 3 Den. 344, 353. 485, affg. 3 Hill, 165, and cases supra ^6 Fearne, Conting. Rem. 84, citing in New York. '-' authorities. 61 Brown v. Wadsworth, 32 App. 67 ChalUs, 135 ; Tudor, Lead. Cas. Div. 423, 429 ; revd., 168 N. Y. 225. Real Prop. 599 ; baniel v. Whartenby, 62 Matter of Sanders, 4 Paige, 293, 17 Wall. 639, 642; Strahan, Prop. 143. 296 ; Rogers v. Rogers, 3 Wend. 503 ; 68 Tudor, Lead. Cas. Real Prop. Chrystie v. Phyfe, 19 N. Y. 344; Bar- 599; Butler note on Fearne, Conting. low v. Barlow, 2 id. 386. Rem. 28; Hargrave, Law Tracts, 63 Cushney v. Henry, 4 Paige, 34s ; " Observations on the Rule." cf. Kingsland v. Rapelye, 3 Edw. Ch. 69 Fearne, Conting. Rem. 181, 182 ; i; Smith, Exec. Int. 248, chap. XHI; i Prest. Est. 347; Challis, 132; Daniel Daniel v. Whartenby, 17 Wall. 639; v. Whartenby, 17 Wall. 642. Brown V. Lyon, 6 N. Y. 419; Strahan, to Hargrave, Collect. Juridica and Prop. 14s. Law Tracts, No. X, 487. 64 Conklin v. Conklin, 3 Sandf. Ch. 64. Rule in Shelley's Case. 301 application,''^ determined to abolish it as artificial and unnecessary. Consequently, in the section above, they precisely reversed the rule in Shelley's case as a rule of future construction.'^^ After January I, 1830, in this State, a limitation of a life estate to one, remainder to his heirs (or to the "heirs of his body " or " issue"), gave the ancestor a life estate and the heirs presumptive a vested remainder.'^'' The words have now become words of purchase, no longer words of limitation; although at common law a feoffment to the use of feoffor for forty years, remainder to A. in tail, remainder to the right heirs of feoffor, was void as a remainder, as the feoffer had the reversion in him.''* Devise to A. and His Issue. In a devise to "A." and his issue, "A." takes a fee : the words are words of limitation and not of purchase.^^ ''I Revisers' note to this section ; '^^ Moore v. Littel, 41 N. Y. 66. See Lytle V. Beveridge, 58 N. Y. 592, 601 ; this case discussed under § 30, The Tayloe v. Gould, 10 Barb. 388, 395. Real Prop. Law, supra, pp. 219-227. ■^2 Brown v. Lyon, 6 N. Y. 412 ; ^* Co. Litt. 22b and Hargrave's note, Barker v. Cary, 11 id. 397, 401; Camp- 134; 3 Davidson, Conveyancing, 267. bell V. Rawdon, 18 id. 412, 417 ; Moak t5 Hilliker v. Bast, 64 App. Div. V. Moak, 8 App. Div. 197; Surdam v. 552; cf. Matter of Gordon, 82 id. 439. Cornell, 116 N. Y. 305, 309. 302 When Remainder Takes Effect. § 45. When remainder not limited on contingency defeating precedent estate, takes effect. — When a remainder on an estate for life or for years is not Hmited on a contingency defeating or avoiding such precedent estate, it shall be con- strued as intended to take effect, only on the death of the first taker, or the expiration by lapse of time of such term of years. Formerly i Revised Statutes, 725, section 29: § 29. When a remainder on an estate for life, or for years, shall not be limited, on a contingency defeating or avoiding such precedent estate, it shall be construed as intending to take effect, only on the death of the first taker, or the expiration, by lapse of time, of such term of yearsJ® Comment on This Section. This section is one of a series regu- lating limitations of the statutory " remainders." It is intended to provide that a limitation, which would formerly have been by the common law a remainder, and not a shifting use or devise," con- tinues to take effect on the regular expiration of the precedent es- tate; whereas conditional limitations take effect in derogation of the precedent estate. This is a mere rule of construction stated out of superabundant caution. A pure remainder always took effect, at common law, after the natural expiration of the precedent estate.'^* The contingency of the remainder at first rarely affected the expira- tion of the particular estate. It was otherwise with particular es- tates after the rise of shifting uses and devises: they were then abridged by conditions and the happening of events. This section relates to the old common-law remainders, before they were affected by judicial theories relating to shifting uses and executory interests. Growth of Juridical Theory. It will be recalled that at common law and in conveyances recognized by that law a subsequent estate limited on a condition which was to defeat a preceding estate, was void.™ But after the Statutes of Uses and Wills a condition might be annexed to a preceding estate, and upon its breach or non-per- formance the estate might be devised or granted over to another, T6 Repealed, chap. 547, Laws 1896. ^^ j Prest. Est. 90; 4 Kent Comm. ''T A statutory remainder is now 249. composed of quondam common-law ™ Vide supra, under § 43, and remainders and shifting uses and de- Goodeve, Real Prop. 191. vises. Vide remarks under i 28, supra. When Remainder Takes Effect. 303 and limitations of this kind were called " conditional limitations." ^^ The original revisers called all future estates dependent on particular estates " remainders," but they preserved the old rule so far as ap- plicable to the different elements of their compound. Hence the present section®^ which applies to those limitations formerly de- nominated common-law remainders. 80 Ibid., supra, and Fearne, Conting. *i Read in connection with this sec- Rem. 272, 381, note. tion §§ 28, 43, The Real Prop. Law and commentary. 304 Posthumous Children. § 46. Posthumous children.— Where a future estate is limited to heirs, or issue, or children, posthumous 'children shall be entitled to take in the same manner as if living at the death of their parents; and a future estate, dependent on the contingency of the death of any person without heirs, or issue, or children, shall be defeated by the birth of a posthumous child of such person, capable of taking by descent. Formerly i Revised Statutes, 725, sections 30 and 31 : § 30. Where a future estate shall be limited to heirs or issue, or children, posthumous children shall be entitled to take, in the same manner as if living at the death of their parent. *2 § 31. A future estate depending on the contingency of the death of any person without heirs or issue, or children, shall be defeated by the birth of a posthumous child of such person, capable of taking by descent.*^ Common-law Rule and Reason for this Enactment. At common law, posthumous children could take by descent,*^ but not take under a devise or by a limitation by way of contingent remainder, if the precedent estate of freehold had expired before their birth.®* Al- though the decision in Reeve v. Long to that effect was reversed in the House of Lords, contrary to the opinion of all the judges,®^ it led to the statute 10 and 11 William III, chapter 16, enabling posthumous children to take by way of remainder.®^ The revisers of the statutes said that this statute, 10 and 11 William III, chap- ter 16, was not re-enacted in New York.®'' But this statement is in error; it was re-enacted in New York in 1774,®® and expressly re- pealed in 1788.®* From that time the common law was, by reason of the reversal of Reeve v. Long,^ presumed to authorize posthu- mous children to take by way of contingent remainder in this State.®^ But the revisers said they did not think that point clear; a doubt 82 Repealed, chap. S47, Laws 1896. 86 Qf^ ^ Kent Comm. 249 ; Cooper v. 83 Reeve v. Long, i Salk. 227, 3 Lev. Heatherton, 65 App. Div. 561, 566- 408, 4 Mod. 282; Watkins, Desc. 131; « Note to i R. S. 725, § 31. I Black. Comm. 130; Challis, iii. ^SLa^^^^s of lyy^^ chap. 2. 8* Reeve v. Long, i Salk. 227, 3 Lev. 89 Steadfast ex dem. NicoU v. Nic- 408, 4 Mod. 282 ; Mason v. Jones^ 2 oil, 3 Johns. Cas. 18, 23 ; 2 J. & V. 354, Barb. 229, 251, 252. § i. 85 Steadfast ex dem. Nicoll v. Nic- 9o Supra. oil, 3 Johns. Cas. 18, 22; Marsellis v. M Willard, Real Prop. & Conv. 171, Thalhimer, 2 Paige, 35 ; Howe v. Van citing Steadfast ex dem. Nicoll v. Schaick, 3 Barb. Ch. 488, 508. Nicoll ; 4 Kent Comm. 249. Posthumous Children. 305 often concurred in by eminent lawyers.®^ Hence, this provision,®* and, in order to prevent the vesting of a Hmitation to take effect in Heu of, or after, such contingent remainder to a posthumous child, the other section®* now consolidated.®^ Interest on Legacy. Where a posthumous child is entitled to a legacy, with interest, the interest is to be calculated from the time of its birth, and not from the death of testator.®^ Section 46 of This Act Does Not Apply to Descents. It will be ob- served that this section refers wholly to cases where the posthu- mous child takes by some limitation by way of remainder, and not to cases of descent, elsewhere provided for in the statutes.®^ How Far After-bom Children Are Bound by Decrees in Suits, etc. How far after-born children are bound by decrees in partition suits is discussed in a number of decisions ;®^ and in other decisions, the effect of judicial sales on their property interests.®® Likewise how far they are to be bound by a decree construing a will.^ These de- cisions are interesting and important, but their consideration is be- yond the scope of this treatise. A recent statute seems to contem- plate the sale, upon application to the court, of the contingent in- terests of infants not in being as well as of the property of those in being.^ 92 Challis, IS9 ; cf. Marsellis v. 89 Monarque v. Monarque, 80 N. Y. Thalhimer, 2 Paige, at p. 40. 320; Ebling v. Dreyer, 149 id. 460; 93 I R. S. 725, § 30; The Real Prop. Rhodes v. Caswell, 41 App. Div. 229; Law, § 46. . Kent v. Church of St. Michael, 136 9*1 R. S. 725, § 31- N. Y. 10, 17; Kirk v. Kirk, 137 id. 95 The Real Prop. Law, § 46. 510, 516; McGillis v. McGillis, 154 96 Lawrence v. Lawrence, i Edw. id. 532, 548; O'Donoghue v. Boies, 159 SS7. id. 87; Adams v. Backer, 29 Misc. 9T I R. S. 7S4, § 18 ; now § 292, The Rep. 93 ; Livingston v. Livingston, 56 Real Prop. Law. App. Div. 484; Myer v. McCullough, 98 Story, Eq. Jurisp., § 6s6a; Fox v. 63 id. 321; Matter of Asch, 75 id. Fee, 24 App. Div. 314, and cases cited ; 486, 495. See § 57, The Real Prop. Kent V. Church of St. Michael, 136 Law, infra. N. Y. 10; Matter of Baer, 147 id. 348; 1 Kilpatrick v. Barron, 125 N. Y. Townshend v. Frommer, 125 id. 446; 751; Harrison v. McAdara, 38 Misc. Campbell v. Stokes, 142 id. 23; Mead Rep. 18. V. Mitchell, 17 id. 210; Moore v. Lit- 2 chap. 154, Laws of 1903, amend- tel, 41 id. 76 ; Smith v. Secor, 31 App. ing § 2348, Code Civ. Proc. ; § 57, Div. 103; affd., IS7 N. Y. 402; Rock- infra. well V. Decker, 33 Hun, 343 ; cf. Paget V. Melcher, 42 App. Div. 76. 20 306 Expectant Estates, how Defeated. § 47. When expectant estates are defeated. — An expectant es- tate can not be defeated or barred by any transfer or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by dis- seizin, forfeiture, surrender, merger or otherwise; but an expectant estate may be defeated in any manner, or by any act or means which the party creating such estate, in the creation thereof, has provided for or authorized. An expectant estate thus liable to be defeated shall not, on that ground, be adjudged void in its creation. Formerly i Revised Statutes, 725, sections 32 and 33 : § 32. No expectant estate can be defeated or barred by any alienation, or other act of the owner of the intermediate or precedent estate, no* by any destruction of such precedent estate by disseisin, forfeiture, surrender, merger or otherwise.^ § 33. The last preceding section shall not be construed to prevent an ex- pectant estate from being defeated in any manner, or by any act or means, which the party creating such estate shall, in the creation thereof, have pro- vided for or authorized; nor shall an expectant estate thus liable to be defeated, be on that ground adjudged void in its creation.* Reason of Section 47. The original revisers in their note gave a very clear and cogent statement of their reasons for the first part of this section.^ At common law contingent remainders might be barred by the destruction of the particular estate before the remain- der vested.* This destruction might occur by the surrender, merger or forfeiture, of the precedent estate by the particular tenant, pending the contingency.'' The remainder might be so barred by fine, or recovery, or by a feoffment.® For this reason limitations of remainders, even after estates tail, were not regarded as within the rule against perpetuities.' After the Statutes of Uses and Wills were passed, executory limitations of estates, taking effect contrary to the principles of the common law being freely allowed,^" such contingent future estates as were effected by way of springing or * Repealed, chap. 547, Laws of 1896. * Fearne, Conting. Rem. 317; Lewis, * Repealed, chap. 547, Laws of 1896. Perp. 132, seq. >* Note to I R. S. 72s, § 32 ; Appen- ^ See supra, under § 32, p. 240. dix II, infra. 10 Van Home v. Campbell, 100 N. Y- 6 Fearne, Conting. Rem. 316, seq. at p. 292, and pp. 41, 42, 239, supra. f Challis, 94. Expectant Estates, how Defeated. 307 shifting uses^^ or executory devises/^ were held not to be able to be defeated by the act of the tenant of the precedent estate. ^^ This being so, these executory limitations were finally subjected to the rule against perpetuities." Had the decision been the other way, the rule against perpetuities would not have been formulated.^'' The revisers saw no reason why, at common law, contingent estates, created by an executory devise, could not be barred, and a con- tingent estate, by way of remainder, could be barred and destroyed by the particular tenant. As the revisers had expressly subjected all future estates to the rule against perpetuities,^^ they deemed it proper that no future estates, valid within that rule, should be defeated by the act of the owner of some precedent estate.^^ Hence the first part of the above consolidated sections. The various changes effected in the old rule by this and kindred sections are dis- cussed in Moore v. Littel,^® and other cases.^^ Expectant Estate May Be Defeated as Provided by Settlor. A fee sim- ple in remainder, although vested, may be so limited as to divest,^** and this was so at common law, if the limitation took eflfect as a use or an executory devise.^^ But now the fee may be so limited by deed or any instrument of conveyance, and the limitation is valid if the defeasance take place within the time allowed by the rule against a perpetuity.^ The second part^ of the foregoing consoli- dated section had reference to a totally distinct principle. It is to be considered with reference to the pre-existing law. It is thought to justify a Hmitation of a mere possibility by way of a remainder after an estate in fee, although the power of defeating a possibility of enjoying the remainder in oossession is expressly vested in the 11 Lewis, Perp. 128. w Bennett v. Garlock, 10 Hun, 328, 12 Lewis, Perp. 131. 341. 13 Lewis, Perp. 131, seq. 20 § 32, The Real Prop. Law; Rad- 1* Lewis, Perp. 130, seq.; Butler's ley v. Kuhn, 97 N. Y. 26, 35; Wil- note to Fearne, Conting. Rem. 565, Hams v. Jones, 166 id. 538, 539 ; Rudd 566. V. Cornell, 58 App. Div. 207, 216; Van IB Lewis, Perp. 134, et supra, pp. Home v. Campbell, 100 N. Y. at 41, 42, 246, note. p. 292; Dana v. Jones, 91 App. Div. 1^ The Real Prop. Law, § 32. 496, 499. 1^ Revisers' note to I R. S. 725, 21 Supra, pp. 231, 232. § 32 ; Griffin v. Shepard, 124 N. Y. at 22 ^ott y Ackerman, 92 N. Y. at P- 76. p. 549, 18 41 N. Y. at p. 78. 23 Supra, p. 306; i R. S. 725, § 33. 308 Expectant Estates, how Defeated. first taker.2* Such a limitation of a fee would, before the Revised Statutes, have been invalid,^? and it is assumed that where success- ive gifts or devises are totally repugnant, they may, under the Re- vised Statutes, be still void.^^ But now even in the case of incon- sistent devises, if the inconsistency enter into the limitation itself, it may be supported under this section,^ or as a power annexed to a life estate.^* Life Tenant's Power of Disposition, or Spending, Not Inconsistent with Remainder over. The question how far a power of disposition of the corpus of an estate by the life tenant is inconsistent with, or re- pugnant to, a remainder over, is discussed in many cases, involving both realty and personalty.^ Where an estate with power of spending, or consuming, is lim- ited to a first taker or trustee, remainder over in fee, such a limita- tion of a remainder is not unlike a limitation of a remainder in consumable or perishable articles.^" It is, however, now distinctly 24 Greyston v. Clark, 41 Hun, 125, Wells v. Seeley, 47 Hun, 109 ; Flana- 130; Flanagan v. Flanagan, 8 Abb. gan v. Flanagan, 8 Abb. N. C. 413, N. C. 413, 417; Roosa V. Harrington, 418; Terry v. Wiggins, 47 N. Y. 512; 171 N. Y. 341. Owens v. Owens, 64 App. Div. 212; 25 Van Home v. Campbell, 100 N. Y. Minges v. Mathewson, 66 id. 379 ; 287 ; Jackson v. Robins, 16 Johns. 537 ; Matter of Meyer, 83 id. 381. Cf. Greyston v. Clark, 41 Hun, 125, 129; Solley v. Westcott, 43 Misc. Rep. 188. Paterson v. Ellis, 11 Wend. 259; ^ Cf. Matter of Westcott, 16 N. Y. Wright V. Miller, 8 N. Y. 9, 25. St. Rep. 286-289 ; Simpson v. French, 26 Crozier v. Bray, 120 N. Y. at 6 Dem. 108 ; Greyston v. Clark, 41 p. 373; Campbell v. Beaumont, 91 id. Hun, 125; Bell v. Warn, 4 id. 406; 464; Coleman v. Beach, 97 id. at Rose v. Hatch, 55 id. 457; s. c, 125 p. SS3; Mersereau v. Kemp, 42 Misc. N. Y. 427; Cole v. Gourlay, 9 Hun, Rep. 253; Kelly v. Hogan, 71 App. 453; Wells v. Seeley, 47 id. 109; Div. 343; Mitchell v. Van Allen, 75 Douglass v. Hazen, 8 App. Div. 25; id. 297; Matter of McClure, 136 N. Y. Swarthout v. Renier, 143 N. Y. 499; 238, 241. Van Axte v. Fisher, 117 id. 401 ; Mat- 2T Leggett v. Firth, 132 N. Y. 7, 11; ter of Gardner, 140 id. 122; Schmeig Bell V. Warn, 4 Hun, 406; Kendall v. Kochersberger, 18 Misc. Rep. 617; v. Case, 84 id. 124; Terry v. Rector Simmons v. Taylor, 19 App. Div. 499; St. Stephen's Church, 79 App. Div. Matter of Haskell, 19 Misc. Rep. 206; 527; Owens V. Owens, 64 id. 212; Blauvelt v. Gallagher, 22 id. 565 ; Mat- Matter of Hunt, 38 Misc. Rep. 30, 84 ter of Skinner, 81 App. Div. 449 ; Mat- App. Div. 159; Matter of Skinner, 81 ter of Stickney, 41 Misc. Rep. 70; id. 449. Solley v. Westcott, 43 id. 188. 28 Matter of Cager, 11 1 N. Y. 343, so Note, p. 262; 2 White & Tudor 349; Leggett V. Firth, 132 id. 7, 11; Lead. Cas. in Equity, on specific be- Expectant Estates, how Defeated. 309 permissible under this section of this statute, when the intention to give the first taker this power is manifest, even if the possibility of the enjoyment of the remainder in possession is practically iiil.^^ quest of consumable articles ; and see Van Home v. Campbell, lOO N. Y. 287, for an excellent summary of the law of " possible remainders." 31 Vide supra, authorities cited note 27, p. 308; Matter of Travis, 30 App. Div. 261, 26s; Minges v. Mathewson, 66 id. 379; Matter of Meyer, 83 id. 381 ; Matter of Babcock, 37 Misc. Rep. 445. Cf. Solley v. Westcott, 43 id. 188; and see further under § i2g, infra, " Life tenant's power to dispose of corpus. olO Remainders Valid Irrespective of Particular Estate. § 48. Effect on valid remainders of determination of precedent estate before contingency. — A remainder valid in its crea- tion shall not be defeated by the determination of the pre- cedent estate, before the happening of the contingency on which the remainder was limited to take effect; should such contingency afterwards happen the remainder shall take effect in the same manner and to the same extent as if the precedent estate had continued to the same period. Formerly i Revised Statutes, 725, section 34: § 34. No remainder valid in its creation, shall be defeated by the determi- nation of the precedent estate, before the happening of the contingency on which the remainder is limited to take effect; but should such contingency afterwards happen, the remainder shall take effect, in the same manner and to the same extent, as if the precedent estate had continued to the same period.32 Explanation of Section 48. As at common law the particular estate and the remainder must take effect so as to prevent any abeyance of the seisin, or, if they did not, the remainder failed,*^ the revisers, in this section, expressly repealed or abrogated an old rule of law. But as a freehold estate can now be limited to begin in futuro^'^ this section was probably drawn more by way of precaution and to prevent litigation than because it was absolutely necessary to vali- date limitations of estates to take effect in futuro, even when by way of a quondam remainder.^^ But despite this section, no future estate suspending the power of alienation can now take effect beyond the period stated in the section directed against a perpetuity.^® Estate Results, when. If the particular estate determine before the contingency on which the remainder is limited occur, then the es- tate results,^'' just as it did before the Revised Statutes in the case of a springing use or devise.^^ Remainders Limited on Void Particular Estates. It is now held that remainders limited on void particular estates, or on estates which do not arise, are not thereby destroyed, but accelerated; provided such remainders are themselves valid within the rule against a per- petuity.^^ 32 Repealed, chap. 547, Laws of *^ The Real Prop. Law, § 32. 1896. 3^ Sheridan v. House, 4 Abb. Ct. 33 See Revisers' note to i R. S. 725, App. Dec. at p. 224; cf. Kalish v. § 34; Campbell v. Rawdon, 18 N. Y. Kalish, 166 N. Y. 368, 379. 412, 418; supra, pp. 25, 26, 42, 238. 38 Supra, pp. 37, 204; et infra, p. 326. 3* The Real Prop. Law, § 40. supra. 38 Kalish v. Kalish, 166 N. Y. 368, 36 Cf. Sheridan v House, 4 Abb. Ct. 379 ; Williams v. Jones, id. 522, 537 ; Add. Dec. 224. et vide supra, under § 30, p. 232. Qualities of Expectant Estates. 311 § 49. Qualities of expectant estates. — An expectant estate is descendible, devisable and alienable, in the same manner as an estate in possession. Formerly i Revised Statutes, 725, section 35 : § 35. Expectant estates are descendible, devisable and alienable, in the same manner as estates in possession.*" Kemainders. At common law vested remainders were estates,** whereas contingent remainders were interests only.*^ Vested re- mainders were not only alienable, but also descendible at common law, and a fortiori are now so under this section.*^ Contingent Interests. At common law and before the Revised Stat- utes expectant interests in land, if contingent, were not assignable before the contingency.** Contingent interests might be so remote as to constitute a mere possibility of inheritance.*^ " To prevent maintenance and the multiplying of contentions and suits, it was an established maxim of the common law, that no possibility, right, title, or any other thing that was not in possession or vested in right could be granted or assigned to strangers." *^ Contingent Remainders and Possibilities. But contingent remainders might pass by estoppel, by deed or fine, or by common recovery, wherein the person entitled to the contingent estate comes in as vouchee, and they were assignable in equity.*'' So a possibility, coupled with an interest when the person was fixed and ascertained, was distinguished for purposes of release and devise from a wholly *" Repealed, chap. 547, Laws of 1896. Rep. 37 ; Lewis v. Howe, 64 App. Div. *i Vanderheyden v. Crandall. 2 Den. 572, 578 ; cf. Dougherty v. Thompson, at p. 20. 167 N. Y. 472. *2 Lewis Bowles's Case, 11 Rep. 79. « See supra, p. 209, under § 30, The And see Lord Hardwicke to this same Real Prop. Law. effect in Garth v. Cotton, i White & *^ Edwards v. Varick, 5 Den. at Tudor, Lead. Cas. in Equity, pp. 836, p. 685. 837, et infra, under this section. *8 Miller v. Emans, 19 N. Y. at *3 Watk. Desc. 123; Savage v. Pike, p. 390, citing note 212 to Co. Litt. 264, 45 Barb. 464, 469; Ham v. Van Orden, 266; Upington v. Corrigan, 151 N. Y. 84 N. Y. 257, 270 ; Moore v. Littel, 41 at p. 148. id. 66; Doe v. Provoost, 4 Johns. 61; *t Cruise Dig., tit. 16, chap. 8, §§ 20, Matter of Batelle, 24 Misc. Rep. 61; 22; Fearne, Conting. Rem. 365, 366; Carpenter v. Schermerhorn, 2 Barb. Nicoll v. N. Y. & Erie R. R. Co., 12 Ch. 31s, 320; Lyons v. Ostrander, 167 N. Y. at p. 132; Stover v. Eycle- N. Y. 135; Shaw v. English, 40 Misc. shimer, 4 Abb. Ct. App. Dec. 309. 312 Qualities of Expectant Estates. contingent interest or a bare possibility.*^ Contingent remainders and estates were, however, finally held devisable,*® and also de- scendible,®" except the existence of the devisee of the contingent in- terest at some particular time might, by implication, enter and make a part of the contingency itself upon which such interest was in- tended to take effect.^^ Reversions. Reversions expectant on a freehold estate are alien- able and also are devisable and descendible.®^ Descent of Reversions and Remainders. At common law, a reversion or remainder in fee, expectant on a freehold estate, did not, during the continuance of such freehold estate, pass by descent from a person in whom title thereto had vested by descent (as a new stock of inheritance) unless some act of ownership which the law re- garded as an equivalent to an actual seisin had been exercised by the owner over such expectant estate.®^ But such is no longer the law.®* The common law was otherwise when the future estate was acquired by purchase, for the purchaser became a new stock of descent and on his death the estate passed directly to his heir-at- law, as at present.®® Possibilities and Contingent Interests under the Revised Statutes. How far the revisers intended, by this section, to alter the rules of the common law in respect of possibilities and contingent interests will *8 I Prest. Est. 76 ; Moore v. Littel, 399 ; cf. Byrnes v. Stilwell, 103 id. 41 N. Y. at p. 83 ; Hennessy v. Pat- at p. 461, as to future estates vested terson, 85 id. 91, 99; Pond v. Bergh, but liable to be divested; Flanagan ID Paige, 140. v. Staples, 28 App. Div. 319. *8 Cruise Dig., tit. 16, chap. 8, § 23 ; B2 Vanderheyden v. Crandall, 2 Den. Fearne, Conting. Rem. 367, note g. 9, 23 ; Fowler v. Griffin. 3 Sandf. 385. See a curious note of reporter on this ^^ Jackson v. Hendrick, 3 Johns, point, 41 N. Y. at p. 228. Cas. 214; Jackson v. Hilton, 16 Johns. sowatk. Desc. 4; Cruise Dig., tit. 96; Vanderheyden v. Crandall, 2 Den. 16, chap. 8, §§ 14, IS, 16; Fearne, 9, 24. Conting. Rem. 364 ; Kenyon v. See, ^ Barber v. Brundage, 50 App. Div. 94 N. Y. 563, 568; Hennessy v. Pat- 123, 124; Lakey v. Scott, 15 Week, terson, 85 id. 91, 99 ; Wadsworth v. Dig. 148 ; cf. Moore v. Littel, 41 N. Y. Murray, 29 App. Div. 191, 196; Roosa 66; Manhattan Real Estate Assn. v. V. Harrington, 31 Misc. Rep. 529. Cudlipp, 80 App. Div. 532, 536. 61 Mr. Butler's note to Fearne, Con- ^5 Vanderheyden v. Crandall, 2 Den. ting. Rem. 364, citing English au- 9, 25; Barber v. Brundage, 50 App. thorities; Edwards v. Varick, 5 Den. Div. 123. 68s, 686 ; Paget v. Melcher, is6 N. Y. Possibility of Reverter. 313 now be considered. It will be observed that the section relates wholly to estates. At common law, a contingent remainder was an interest, not an estate.^^ Yet, under the Revised Statutes, a con- tingent remainder is always regarded as an " expectant estate " for the purposes of the application of this section,^^ although formerly a contingent remainder was not an estate and did not confer seisin for the purposes of descent^* in all cases.^^ But contingent interests do not yet pass to assignees in bankruptcy.^" Possibility of Reverter Since the Revised Statutes. A possibility of reverter is not, however, an estate under this section. Upon every determinable fee or grant subject to a condition subsequent, there is annexed a possibility of reverter. At common law, such a possi- bility of reverter was descendible, but not devisable or assignable.®' Since the Revised Statutes such a possibility of reverter is held not to be an estate in lands, under the section of the act now under con- sideration,®^ and not to be assignable,®^ or devisable®* although it may be released®" or merge in the inheritance. Conditions subse- quent (leaving a possibility of reverter) may be reserved only for the benefit of the grantor and his heirs, and no others may take the 56 2 Prest. Abst. 107; Challis, 58; 62Upington v. Corrigan, 151 N. Y. Nicoll V. N. Y. & Erie R. R. Co., 12 143 ; Nicoll v. N. Y. & Erie R. R. Co., N. Y. at p. 135. 12 id. 121, 123 ; Vail v. L. I. R. R. Co., 5^ Lawrence v. Bayard, 7 Paige, 70, 106 id. 283 ; United States v. Lough- 76; Pickert v. Windecker, 73 Hun, rey, 172 U. S. 206; cf. Newkirk v. 476; Hennessy v. Patterson, 85 N. Y. Newkirk, 2 Caines Cas, 345, as to the 91, 99; Ham V. Van Orden, 84 id. old law, et vide supra, p. 163, et infra. 257, 270 ; Beardsley v. Hotchkiss, 96 ®3 Towle v. Remsen, 70 N. Y. at id. 201, 213; Crooke v. County of p. 312; Upington v. Corrigan, 151 id. Kings, 97 id. 421, 449; Dodge v. Ste- at p. 152; cf. Code Civ. Proc, § 1910, vens, 105 id. 585, 588; Griffin v. Shep- passed after Nicoll v. N. Y. & Erie ard, 124 id. 70, 76; Savage v. Pike, 45 R. R. Co., 12 N. Y. 121, was decided. Barb. 464; Freeborn v. Wagner, 2 Observe that this point of assigna- Abb. Ct. App. Dec. 175, 182; cf. Van- bility is obiter in Upington v. Corri- derheyden v. Crandall, 2 Den. at p. 20, gan. as to vested remainder. 64 Countryman v. Deck, 13 Abb! 58Bing. Desc. 221; Vanderheyden N. C. no, 112; Van Rensselaer v. V. Crandall, 2 Den. at p. 25. Ball, 19 N. Y. 100, 103; Upington v. 59 Fearne, Conting. Rem. 364, note e. Corrigan, 151 id. 143; cf. Pond v. ^ Supra, p. 226, under § 30. Bergh, 10 Paige, 140. 61 Challis, 58, 63, 153; Prest. Shep. 664 Kent Comm. 9; Church in Touch. 120; sed cf. Judge Hare's note Brattle Square v. Grant, 3 Gray to Dumpor's Case, i Smith, L. C. (Mass.), 142. 314 Descent of Possibilities. • benefit of a breach."*' Upon the death of the grantor before entry, the possibility of reverter devolves upon the heirs-at-law of grantor by force of representation, and not by descent.*^ Descent of PossibiUties. Possibilities are said by Watkins, in his justly-celebrated Treatise on Descents,^* to be descendible to the heirs of the persons entitled to them, in the same manner as re- mainders or executory devises. If this statement be accurate still, a possibility of reverter, being a right of entry^^ sub conditione, fol- lows our " Statute of Descents." ™ But a distinction is made in a late case between " representation " and " descent." '^^ It is, how- ever, to be noticed in this connection that a grant in fee on condition subsequent that the grantee render rent certain has been held not to leave a " possibility of reverter " in grantor and his heirs.''^ This class of conditions subsequent do not depend on a " possibility of reverter," but the rents reserved stand on a statutory basis, and are, in this State, wholly independent of the common law or of tenure.''^ Determinable Fee. A determinable fee descends.^* 68 Nicoll V. N. Y. & Erie R. R. Co., ^ cf. Stilwell v. Melrose, 15 Hun, 12 N. Y. at p. 131 ; Towle v. Remsen, 387. 70 id. at p. 312; Hoyt v. Dillon, 19 '^1 Upington v. Corrigan, 151 N. Y. Barb. 644, 651 ; Countryman v. Deck, 143 ; cf. Watk. Desc. S, and note to 13 Abb. N. C. 143- 20 Abb. N. C. 61. CTUpington v. Corrigan, 151 N. Y. ^2 Van Rensselaer v. Read, 26 N. Y. 143 ; cf. Watk. Desc. S, and see note, at p. 563. 20 Abb. N. C. 61, 62, for difference ^^ Van Rensselaer v. Ball, 19 N. Y. between representation and descent, at p. 105, and see remarks and cita- 88 P. S ; p. 14, London Ed. of 1837. tions under The Real Prop. Law, 6« I R. S. 754, § 27 ; The Real Prop. § 21, at pp. 163, 180, 181, supra. Law, art. IX, § 280, infra. ''* Stilwell v. Melrose, 15 Hun, 378, 380. Disposition of Rents and Profits. 315 § 50. Disposition of rents and profits. — A disposition of the rents and profits of real property to accrue and be received at any time subsequent to the execution of the instrument creating such disposition, shall be governed by the rules established in this article^ for future estates in real property. Formerly i Revised Statutes 725, section 36 : § 36. Dispositions of the rents and profits of lands, to accrue and be re- ceived at any time subsequent to the execution of the instrument creating such disposition, shall be governed by the rules established in this Article in rela- tion to future estates in lands.'^ Comment on Section 50. There were certain well-established prin- ciples regulating the disposition of rents and profits of lands at the common law. The foregoing section was intended to bring all future limitations of the rents and profits of lands into harmony with future estates in the lands themselves.'^* Rent an Incorporeal Hereditament. Rent is generally classified as an incorporeal hereditament,''^ or an intangible right in respect of land, which right passes to the heir on intestate successions.''* Even this plain definition of law has found its opponents in this country, who doubted whether any rent is here an " incorporeal heredita- ment." ^^ But nothing else is now better established than that a rent is an incorporeal hereditament.*" Burton classed rents with incorporeal tenements,*^ and so Challis.*^ Rent a " Tenement." So a rent was a tenement also, in the sense of being a subject of common-law tenure.** Classification of Rents. Rents were the subject of an accurate classi- fication: (I) Rent incident to tenure. (II) Rent which is not in- cident to tenure, but which is itself a tenement and capable of being the subject of estates limited by analogy to estates in lands. (Ill) Rent incident to reversions. 7B Repealed, chap. 547, Laws of 1896. '^9 Bing. Desc. 23 ; sed vide Van Te Per V. C. McCoun, in Lorillard Rensselaer v. Hays, 19 N. Y. 68. v. Coster, s Paige, at pp. 195, 223, so Van Rensselaer v. Read, 26 N. Y. 224; s. c, 14 Wend. 318. at p. 564; Van Rensselaer v. Hays, "^"^ 2 Black. Comm. 41 ; Van Rensse- 19 id. 68. laer v. Hays, 19 N. Y. 68; infra, 81 Burton, Compend. of Real Prop, under § 280, The Real Prop. Law. chap. VL ''S Co. Litt. 6a ; infra, under § 280, 82 Challis, Introductory Remarks, The Real Prop. Law. at pp. 2, 33. 83 Challis, 37. 316 Disposition of Rents and Profits. No Rents Incident to Tenure now. Since the abolition of quit rents, there are no rents in this State incident to tenure. The last class, or rent incident to reversions, needs no explanation as such rents follow estates in lands.®* Rents Not Incident to Tenurei. The second class of rents only need be alluded to. They include the older perpetual rents of the law of New York.*'' Rents were at common law divided into^ rents service, rents charge, and rents seek.*'' After the Statute of Quia Emptores there could be no rent service reserved by a common person on a conveyance in fee.** But a rent charge might be reserved to him and his heirs on a grant or conveyance in fee, and this gave them a " fee simple " in the rent.*® Rent charges in fee simple were formerly very common in New York,^ and also in Liverpool,^^ and Manchester, England. Such a rent could be entailed under the Statute De Donis.^^ If a grantee of a rent in fee simple died without heirs it did not escheat, but the owner of the land held the land dis- charged of the rent.®^ Freeholds in a Rent in Esse. At common law no limitation of an estate of freehold in a rent in esse could be limited so as to exist at intervals ; it was otherwise at the creation of the rent.®* Nor could an estate of freehold in a rent in esse be limited to commence in futuro.^ A rent charge was subject to dower and curtesy,®® and it was descendible to the heirs of the party to whom it was re- served.®^ Perpetual Rents in New York. The nature of perpetual rents is- suing out of estates in fee, and the constitutional limitation on demises of agricultural lands have been already considered.®* ^ Supra, pp. 148, 172, 173. Real Prop. 333; cf. Atty.-Gen. v. ^ Supra, pp. 176, 178. Sands, Hardr. 488; s. c, Tudor, 86 Litt., § 213. Lead. Cas. Real Prop. 760. 87 Supra, under § 20, at p. 148, The ®* Challis, 88, 89.. Real Prop. Law. 9S Challis, 87, 88; i Prest. Est. 217; 88 18 Edw. I, chap, i ; Tudor, Lead, so as to rent de novo. Lewis, Perp. Cas. Real Prop. 297. note 600. 89 Cruise Dig., tit. 28, chap. 2. 96 Co. Litt. 32a. 90 Supra, pp. 173, 176. 97 Van Rensselaer v. Read, 26 N. Y. 91 Tudor, Lead. Cas. Real Prop, at p. 564; Watk. Desc. 247; supra, at 297; Watk. Desc. (Ed. 1837) 247. pp. 173, 180, under § 21, The Real 92 Challis, 38; Cruise Dig., tit. 28, Prop. Law. chap. 2, § 2. ^^ Supra, pp. 172-185, under § 2i, 93 Challis, 33; Tudor, Lead. Cas. The Real Prop. Law. Disposition of Rents and Profits. 317 Explanation of Section 50. If we assume that a rent in esse is now the subject of Hmitation, the estates created therein, their duration, quantity, and quality, are made precisely analogous by the above section to future estates in lands. There may, therefore, be a fee simple estate in the rent ; two successive life estates to persons in being with remainder over, and an estate pur autre vie with re- mainder over in fee®' after the death of a cestui que vie; in short, such limitations of estates in the rent as there may be in land under this article of " The Real Property Law." ^ So a rent in esse may be limited on trusts for lives with remainder over in fee simple. 99 The Real Prop. Law, §§ 34, 35, 1 Art. II. supra. 318 Accumulations. . § SI. Accumulations. — All directions for the accumulation of the rents and profits of real property, except such as are allowed by statute, shall be void. An accumulation of rents and profits of real property, for the benefit of one or more persons, may be directed by any will or deed sufficient to pass real property as follows: 1. If such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being-, and terminate at or before the ex- piration of their minority. 2. If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it must commence within the time permitted, by the provisions of this article, for the vesting of future estates, and during the minority of the beneficiaries, and shall terminate at or before the expiration of such minority. 3. If in either case such direction be for a longer term than during the minority of the beneficiaries it shall be void only as to the time beyond such minority. Formerly i Revised Statutes, 726, sections 37 and 38: § ZT- An accumulation of rents and profits of real estate, for the benefit of one or more persons, may be directed by any will or deed, sufficient to pass real estate, as follows : 1. If such accumulation be directed to commence on the creation of the estate, out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expi- ration of their minority : 2. If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it shall commence within the time in this Article permitted for the vesting of future estates and during the minority of the persons for whose benefit it is directed, and shall terminate at the expiration of such minority.^ § 38. If, in either of the cases mentioned in the last section, the direction for such accumulation shall be for a longer term than during the minority of the persons intended to be benefited thereby, it shall be void as respects the time beyond such minority. And all directions for the accumulation of the rents and profits of real estate, except such as are herein allowed, shall be void.^ Rule by the Common Law. At common law the accumulation of the rents and income* of property might be directed for the same period 2 Repealed, chap. 547, Laws of 1896. its " vide Thorn v. de Breteuil, 86 * Repealed, chap. 547, Laws of 1896. App. Div. 405, 415, seq.; s. c. 179 N. Y. * As to what are " rents and prof- 64. Accumulations. 319 as the suspension of its alienation, or vesting, viz., for a life or lives in being and twenty-one years after; the rule against perpe- tuties being then the only rule directed against accumulations.^ This being so, the will of Mr. Thelluson, taking effect in England in the year 1797, bequeathed a large estate to trustees to accumu- late the rents and profits during the lives of his three sons, and the lives of their sons then in being, and of such issue of the lat- ter as might be living at testator's decease. At the time of Mr. Thelluson's death these several lives, during which accumulation was directed, numbered nine, which an actuary measured as equiva- lent to seventy years.® This attempt to tie up an estate for the sole purpose of accumulation excited condemnation, although the period might have been made still longer by the addition of the term of twenty-one years in gross. The will, being adjudged valid,' led to the act 39 and 40 George III, chapter 98 (sometimes called " Lord Loughborough's Act," but more often the "Thelluson Act"),* restricting the period of accumulation to : (i) During the life of the grantor and twenty-one years thereafter, where the direction for the accumulation is by deed, and where it is by will, twenty-one years from the death of the testator; or (2) during the minority of any person or persons who shall be living or conceived at the death of the grantor or testator directing the accumulation ; or (3) during the minority of any person or persons who, under the deed or will directing the accumulation, would, if then of full age, be entitled to such rents and profits. The Revised Statutes. The revisers intended, by the original sec- tions above,® to confine the powers of accumulation to the third or last period just mentioned.^" 5 Tudor, Lead. Cas. Real Prop. 505 ; 8 Vail v. Vail, 4 Paige, 317, 323 ; note to Griffiths v. Vere, 9 Ves. 127; Thorn v. de Breteuil, 86 App. Div. Cadell V. Palmer, i CI. & Fin. 372; 405, 410. Lewis, Perp. 592; Pray v. Hegeman, » i R. S. 726, §§ 37, 38. 92 N. Y. S08, 514; Marsden, Perpetu- i" Revisers' note to i R. S. 725, ities & Accumulations, 314; Strahan, §§ 36, 37, 38; Vail v. Vail, 4 Paige, Law of Property, 180. 317; s. c, 7 Barb. 226; Hawley v. * Mr. Hargrave's Treatise on the James, s Paige, 318, 481 ; s. c, 16 Thelluson act, at p. 5. Wend. 61 ; Lovett v. Gillender, 35 ''Thelluson v. Woodford, 4 Ves. N. Y. 617, 620; Thorn v. de Breteuil, 227, II id. 112. 86 App. Div. 405, 179 N. Y. 64. 320 Accumulations. Existing Rules Governing Accumulations. In every case of accumula- tion it must be now directed to be made for the sole benefit of a minor or minors, during a period measured by the respective minor- ity of such minor or minors ; and at the expiration of each minority the accumulation must be made payable to such quondam minor absolutely, without defeasance; not qualifiedly, such as for his life, remainder over or in trust, etc. ;^^ but it seems that a testator has power to make a contingent disposition of the accumulation in the event that the minor die before attaining majority, and that such contingent beneficiary may be adult.^^ Accumulations May Not Be During Life of an Adult. Yet accumulation may not be directed to be made during the life of adults, even though such accumulation may accrue for the benefit of minors as re- siduary legatees or devisees ;^^ nor, may it be directed to be made for the benefit of adults and minors conjointly, even though con- fined to the period of the actual minority of a beneficiary.^* Accumulations to Be for Actual Minority Only. The period of accu- mulation can only be an actual minority of the person beneficially entitled-*^ and not an arbitrary period of three^^ or ten years^'' or a life of a person in being.^* Accumulation for the Purpose of Paying off Mortgages, etc. Accumula- tions cannot be directed to be made only for the purpose of paying 11 Boynton V. Hoyt, I Den. S3 ; Har- v. Schell, 140 id. 516; Matter of ris V. Clark, 7 N. Y. 242 ; Matter of Rogers, 22 App. Div. 428, 431 ; Kalish Hayden, 77 Hun, 219; Tweddle v. v. Kalish, 166 N. Y. 368; McGuire v. N. Y. Life Ins. & Trust Co., 89 id. McGuire, 80 App. Div. 63. 602, 606 ; Gilman v. Healy, i Dem. 1* Hawley v. James, 16 Wend. 6i ; 404; Pray v. Hegeman, 92 N. Y. 508; Boynton v. Hoyt, i Den. 53; Manice Barbour v. De Forest, 95 id. 13; Cook v. Manice, 43 N. Y. 303; Pray \. V. Lowry, 95 N. Y. 103 ; Matter of Hegeman, 92 id. 508 ; Barbour v. De Snyder, 35 Misc. Rep. 588; Schermer- Forest, 95 id. I, 16; cf. Smith v. horn V. Cotting, 131 N. Y. 48, 61; Campbell, 146 id. 116; Gilman v. Mason v. Mason's Exrs., 2 Sandf. Healy, i Dem. 404. Ch. 432, 475. 15 Harris v. Clark, 7 N. Y. 242 ; 12 Smith V. Parsons, 146 N. Y. n6; Pray v. Hegeman, 92 id. at p. 515; Matter of Wagner, 81 App. Div. 163, Thorn v. de Breteuil, 86 App. Div. 166; cf. Gilman v. Healy, i Dem. 404; 405, 179 N. Y. 64. Pray v. Hegeman, 92 N. Y. 508, 519. 1^ Morgan v. Masterson, 4 Sandf. IS Lovett V. Gillender, 35 N. Y. 617, 442. 620; Kilpatrick v. Johnson, 15 id. 322; i'' Converse v. Kellag, 7 Barb. 590. Cook V. Lowry, 95 id. 103 ; Cochrane 1* Lovett v. Kingsland, 44 Barb. 560. Accumulations. 321 off mortgages,^^ or other indebtedness,^ or to augment working capital.^^ Accidental Accumulations. But it is no violation of this section of the statute for a testator, after rendering his estate inaUenable for two lives, to give pecuniary legacies payable at a future time, in such manner as to show that he intended them to be paid exclusively from income as it should accrue, leaving the corpus of the estate intact.^^ The statute is not violated by an accumulation which is accidental and not the result of direction, e. g., if it arises ex neces- sitate rei, as from the surplus income of a fund held for a person incapax.^ Nor is it unlawful to direct trustees to make good the capital of a trust.^* Accumulation Implied from Character of Limitation. In the absence of any express direction, a direction for the accumulation of surplus income may be implied from the character of the limitation of the corpus of the estate, and it may then be adjudged void;^ notwith- standing a trust is not ordinarily implied in order that it may be then decreed to be void ;^ the general rule of construction of other trust 19 Bean v. Hockman, 31 Barb. 378 ; Matter of Rogers, 22 App. Div. 428, 431 ; Killam v. Allen, 52 Barb. 605 ; Cowen V. Rinaldo, 82 Hun, 479, 484; Re Fisher's Estate, 4 Misc. Rep. 46; Garvey v. McDevitt, 72 N. Y. 556, 562; Goebel v. Wolff, 113 id. 405, 414; Hascall v. King, 162 id. 134; Siefke V. Siefke, 34 Misc. Rep. 37; Hafner V. Hafner, id. 65 ; Matter of Snyder, 35 id. 588; Dodsworth v. Dane, 38 id. 684; Dresser v. Travis, 39 id. 358, 361, 177 N. Y. 371 ; Becker v. Becker, 13 App. Div. 342, to the contrary, was promptly overruled in Hascall v. King, 162 N. Y. 134; Thorn v. de Breteuil, 86 App. Div. 405; Matter of Koss, 177 N. Y. 371 ; vide infra, under § 76, The Real Prop. Law. 20 Matter of Hoyt, 71 Hun, 13. 21 Thorn v. de Breteuil, 86 App. Div. 40s, 179 N. Y. 64. 21 6q. 'Phelps' Exr. v. Pond, 23 N. Y. 23 Hendricks v. Hendricks, 3 App. Div. 604; Craig v. Craig, 3 Barb. Ch. y6; Livingston v. Tucker, 107 N. Y. S49; cf. Cochrane v. Schell, 140 id. S16. 24 N. Y. Life Ins. & Trust Co. v. Baker, 165 N. Y. 484. 25 Craig V. Craig, 3 Barb. Ch. 76, 93 ; Cochrane v. Schell, 140 N. Y. 516; Matter of Fritts, 19 Misc. Rep. 402; cf. In re Nesmith, 140 N. Y. 609; Vail v. Vail, 7 Barb. 226; Converse v. Kellog, id. 590; Hawley v. James, 5 Paige, 318, 481 ; Hendricks v. Hen- dricks, 3 App. Div. 604. 26 Smith V. Edwards, 88 N. Y. at p. 102; Vail V. Vail, 7 Barb. 236, 237; Woodward v. James, 115 N. Y. at p. 357; Matter of Conger, 81 App. Div. 493, 497. 322 Accumulations. limitations being that an unlawful intendment is never presumed where a double construction is possible.^ When Accumulations May Begin. This section of the statute ex- pressly permits accumulation to be directed to begin at any time within the period permitted for the vesting of future estates, and to continue thereafter for the actual minority of a person in esse.^ But the person for whose benefit the accumulation is directed must be in esse at the time when such accumulation is directed to begin, or else the direction is void.^ Yet accumulation may be directed for the benefit of a class of infants, some of whom are in esse and others not, when accumulation is directed to begin,^" provided the period of accumulation does not violate this section.^^ Unlawful Directions for Accumulation, how Far Void. An unlawful di- rection for accumulation alone is made void by the statute, and if the devise or conveyance of the original estate can be separated therefrom, it will stand.^^ So, where accumulation is directed to be made for the benefit of minors only, but also to continue during their majority, the direction is not wholly void, but void only as to the period in excess of actual minority .^^ If Direction for Accumulation Void. When a direction for accumula- tion is void, but the property is otherwise well limited, the income directed to be accumulated may go to the immediate life tenant,^* or else to the persons entitled to the next eventual estate under the 2T Phelps V. Phelps, 28 Barb. 121, ^^ Lang v. Ropke, s Sandf. 363, 371 ; 149; s. c, 23 N. Y. 69; Roe v. Vin- Hawley v. James, s Paige, at p. 481; gut, 117 id. 204, 2i8; Titus v. Weeks, Kilpatrick v. Johnson, 15 N. Y. 322; 27 Barb. 136. De Peyster v. Clendening, 8 Paige, 28 Maiiice v. Manice, 43 N. Y. 303, 305 ; Coster v. Lorillard, 14 Wend. 37S ; Mason v. Mason's Exrs., 2 Sandf. 265 ; Manice v. Manice, 43 N. Y. 303, Ch. 432, 474; Mason v. Jones, 2 Barb. 383, 384; Cochrane v. Schell, 140 id. 229; affd., 3 N. Y. 375 ; Gott v. Cook, 516, 536; Garvey v. Union Trust Co., 7 Paige, S2I. 29 App. Div. 513, 516. 29 Kilpatrick v. Johnson, 15 N. Y. ^^ § 51, supra; Kilpatrick v. John- 322 ; Manice v. Manice, 43 id. at son, 15 N. Y. 322, 325 ; Gilman v. p. 376 ; Cooper v. Heatherton, 61 App. Reddington, 24 id. i ; Hull v. Hull, Div. 561, 567; Matter of Rowland, 37 id. 647; Tobin v. Graf, 39 Misc. Rep. Misc. Rep. 114; United States Trust 412. Co. V. Sober, 178 N. Y. 442. 3* Williams v. Williams, 8 N. Y. 30 Mason v. Mason's Exrs., 2 Sandf. 525, S38 ; Manice v. Manice, 43 id. Ch. at pp. 474, 475; Mason v. Jones, 303, 383; Pray v. Hegeman, 92 id. 2 Barb. 229; affd., 3 N. Y. 375. 508; Barbour v. De Forest, 95 id. 13. 31 Gott V. Cook, 7 Paige, 521 ; Hax- tun V. Corse, 2 Barb. Ch. 506, 518. Accumulations. 323 rule stated in section 53 of this act f^ or it may, in a proper case, pass as undevised as in the instance of other void trusts,^^ or fall into the residuary .^^ In other words if the trust for accumulation is void under this statute and indivisible, the corpus of the entire trust property goes as undevised, as in other void trusts,^ or into the residuary.^^ But if the estate is Hmited in trust generally, and only the direction for accumulation is void, the income alone may go as undevised*" or as provided for in the fifty-third section*^ of this article. Disposition of Accumulations when Infant Dies before Distribution. In the event of the demise of an infant entitled to accumulations, but before distribution thereof, such accumulations, if vested in interest, pass to the personal representatives of the deceased, unless they are otherwise limited, devised, or bequeathed over;*^ and, it seems that the accumulations of personal estate may be limited over to adults in the contingency of the infant's death before majority,*^ and so the accumulations from real property.** Accumulations for Charity. Whether under the recent legislation touching charities,*^ accumulations for charitable objects are longer invalid, may be doubted.** Charities are really outside of the realm of the rules relating to perpetuities or accumulation for non-chari- table objects. 35 Vail V. Vail. 4 Paige, 317, 328 ; 39 Cruikshank v. Home for the Oilman v. Healy, i Dem. 404; Gott v. Friendless, 113 N. Y. 337; Matter of Cook, 7 Paige, 542; Haxtun v. Corse, Allen, 151 id. 243; cf. Kerr v. 2 Barb. Ch. 506, 518; Cook v. Lowry Dougherty, 79 id. 327, 346. 95 N. Y. 103 ; Manice v. Manice, 43 *o Haxtun v. Corse, 2 Barb. Ch. 506, id. 303, 38s; Cochrane v. Schell, 140 518; Vail v. Vail, 4 Paige, 317, 328; id. 516; Matter of Snyder, 35 Misc. Manice v. Manice, 43 N. Y. 303, 383; Rep. 588; Tobin v. Graf, 39 id. 412; Cochrane v. Schell, 140 id. 516. Reeves v. Snook, 86 App. Div. 303. *i Vide infra, under section 53. 36Edson V. Bartow, 10 App. Div. *2 Smith v. Parsons, 146 N. Y. 116. 194, 117; Manice v. Manice, 43 N. Y. « Smith v. Parsons, 146 N. Y. 116; 303, 383; United States Trust Co. v. cf. Pray v. Hegeman, 92 id. 508, 519; Sober, 178 id. 442; cf. Matter of Gilman v. Healy, i Dem. 404. Snyder, 35 Misc. Rep. 588. 44 Pray v. Hegeman, 92 N. Y. at 3T Cruikshank v. Home for the p. 513. Friendless, 113 N. Y. 337; Matter of 46 yide infra, under § 93, The Real Allen, 151 id. 243 ; cf. Kerr v. Prop. Law. Dougherty, 79 id. 327, 346. 46 cf. Brigham v. Peter Bent Brig- 38 Edson V. Bartow, 10 App. Div. ham Hospital, 126 Fed. Rep. 796. 104, 117; Manice v. Manice, 43 N. Y. 303, 383. 324 Anticipation of Accumulations. § 52. Anticipation of directed accumulation. — Where such rents and profits are directed to be accumulated for the benefit of a minor entitled to the expectant estate, and such minor is destitute of other sufficient means of support and educa- tion, the supreme court, at a special term, or, if such accumulation has been directed by will, the surrogate's court of the county in which such will has been admitted to probate, may, on the application of his general or testa- mentary guardian, direct a suitable sum out of such rents and profits to be appHed to his maintenance or education. Formerly i Revised Statutes, 726, section 39: § 39. Where such rents and profits are directed to be accumulated for the benefit of infants entitled to the expectant estate, and such infants shall be destitute of other sufficient means of support and education, the chancellor, upon the application of their guardian, may direct a suitable sum out of such rents and profits to be applied to their maintenance and education. In 1891 section 39 was amended by "An act to amend section thirty-nine of article first of title two of chapter one of part two of the Revised Stat- utes, relating to infants' estates." (Chap. 172, Laws of 1891.) Approved April 13, 1891, so as to read as follows : § 39. Where such rents and profits are directed to be accumulated for the benefits of infants entitled to the expectant estate, and such infants shall be destitute of other sufficient means of support and education, the supreme court at special term, and, where such accumulations have been di- rected by a last will and testament, the surrogate's court of any county in which such last will and testament has been admitted to probate, upon the application of their guardian, may direct a suitable sum out of such rents and profits to be applied to their maintenance and education.*'^ Comment on this Section. Under this section the allowance may be to the father*® or mother,*® and for past as well as for future sup- port.^" Where the accumulation is directed to be made for the bene- fit of a class with the right of the survivors to take the whole, the court may allow maintenance out of this fund ; although, as a rulte, maintenance cannot be allowed to minors out of the accumulations of *' As amended, repealed, chap. 547, *8 Gladding v. Follett, 2 Dem. 58, Laws of 1896. 68. 48 Matter of Burke, 4 Sandf. Ch. BO Matter of Kane, 2 Barb. Ch. 375 ; 617. Smith v. Gertner, 40 How. Pr. 185 ; Matter of Bostwick, 4 Johns. Ch. lOO. Anticipation of Accumulations. 32^' a fund which on a certain contingency is to go elsewhere than to the person maintained.^^ Surrogates May Order. Under this section, as amended in 1891, the surrogate has now jurisdiction to make the order, and it rests in discretion.^'* 51 Matter of Davidson, 6 Paige, 316. ^^ Matter of Lehman, 2 App. Div. 531. 326 Disposition of Profits, Undisposed of. § 53. Undisposed profits. — When, in consequence of a valid limitation of an expectant estate, there is a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits are undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presump- tively entitled to the next eventual estate. Formerly i Revised Statutes, 726, section 40: § 40. When in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation or of the ownership, during the continuance of which, the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next event- ual estate.®* Common-law Rule. Before this section of the Revised Statutes any portion of real estate undevised, or undisposed of by deed, went to the heirs** or resulted to the grantor or settlor.^* Rule Now, Since the Revised Statutes. The Revised Statutes altered the common-law rule only where a limitation of an estate sus- pended the power of alienation or the ownership, and, during the continuance of such suspension, there is no specific devise of the rents and profits.*^ There must be a valid, not an invalid, limitation of an expectant estate, before this section can apply to undisposed of income and profits,*^ and there must be also a failure or omission to dispose of the rents and profits of the estate, in whole or in part, in the interim before the expectant estate vests in interest or pos- session. Then this section applies, and undisposed of rents and profits go to the persons entitled to the next eventual estate.*® The 53 Repealed, chap. 547, Laws of 19; Schettler v. Smith, 41 id. 328, 340; 1896. Manice v. Manice, 43 id. 303, 384; 5* See Lalor, Law of Real Prop, of Pray v. Hegeman, 92 id. 508, 519; the State of New York, 112, and cases Cook v. Lowry, 95 id. 103; cf. Reeves cited; Vail v. Vail, 4 Paige, 328; v. Snook, 86 App. Div. 303, 308. Cruise Dig., tit. 38, chap. 18, § i ; 2 ** Delafield v. Shipman, 103 N. Y. Black. Comm. 173. 463, 469; Schermerhorn v. Cotting, 55 Supra, pp. 37, 204; Cornish, Uses, 131 id. 48, 61 ; Tompkins v. Verplanck, 68 et seq. 10 App. Div. 572, 579, 154 N. Y. 634; 56 Gott V. Cook, 7 Paige, 542 ; Craig Hafner v. Hafner, 34 Misc. Rep. 65 ; V. Craig, 3 Barb. Ch. 76, 93. Matter of Snyder, 35 id. 588; Tobin 57 Williams v. Williams, 8 N. Y. v. Graf, 39 id. 412 ; Cochrane v. Schell, 538; Gilman v. Reddington, 24 id. 9, 140 N. Y. 516, 538; Garvey v. Union Disposition of Profits, Undisposed of. 327 persons who thus take are those entitled at the time the income accrues, although the estate may go eventually elsewhere.'^ This section was also applied to personal property f and, in some instances, to trusts for so-called " annuitants." *^ Trust Co., 29 App. Div. 513, 516; Smith V. Secor, 31 id. 103; Meldon v. Devlin, id. 146, 156; Matter of Viele, 3S id. 211, 213; Horsfield v. Black, 40 id. 264, 267. Cf. United States Trust Co. V. Soher, 178 N. Y. 442, 449. 59 Meldon v. Devlin, 31 App. Div. 146, IS7, citing Kilpatrick v. John- son, 15 N. Y. 322, 326, 327; Schettler v. Smith, 41 id. 328. 60 Craig v. Craig, 3 Barb. Ch. 76, 93 ; Robeson v. Robeson, 5 Lans. 160, 168; Garland v. Garland, 35 Misc. Rep. 147; Cook V. Lowry, 95 N. Y. 103, 108; Reeves v. Snook, 86 App. Div. 303. For present rule touching accumulations of personal property, see § 4, Personal Prop. Law, and United States Trust Co. v. Soher, 178 N. Y. 442, 447. 61 Hafner v. Hafner, 34 Misc. Rep. 65, 69; Reeves v. Snook, 86 App. Div. 303. See pp. 264, 265, supra. 328 When Expectant Estates Created. § 54. When expectant estates are deemed created. — Where an expectant estate is created by grant, the delivery of the grant, and, where it is created by devise, the death of the testator, shall be deemed the time of the creation of the estate. Formerly i Revised Statutes, 726, section 41 : § 41. The delivery of the grant, where an expectant estate is created by grant; and where it is created by devise, the death of the testator, shall be deemed the time of the creation of the estate.^2 Comment on this Section. This section is closely related to section 32,^^ and to section 209 of this act. At common law a conveyance did not take effect from delivery of the deed, but from livery of seisin.®* Yet a feoffment without livery was not precisely void, but it created an estate at will only, determinable by the feoffor.® Deeds of bargain and sale, without consideration, were ordinarily void as bargains and sales,^ yet might be good under certain cir- cumstances as covenants to stand seised.^'^ Now the delivery of the deed, or death of testator, alone controls under this section the creation of the future estate limited by deed, or devise.^ The rules relating to delivery of deeds and the effect of such de- livery in certain cases are collated under section 209 of this act, and need not be repeated. The presumptions of law in the absence of specific proof of de- livery are also alluded to under section 209 of this act. 62 Repealed, chap. 547, Laws of ^ Schott v. Burton, 13 Barb. 173 ; 1896. Corwin v. Corwin, 6 N. Y. 342; Wood ^^ Supra, p. 236; Everitt v. Everitt, v. Chapin, 13 id. 509, 517. 29 N. Y. 39, 71. 67 Sir E Sugden, note to p. 251 of 64 Challis, 83. Gilbert, Uses & Trusts. 65 Co. Litt. s6b ; i Prest. Shep. 68 Lang v. Ropke, s Sandf. 363, 369 ; Touch.,^tit. 203; Smith, Compend. Sherman v. Sherman, 3 Barb. 385, Real & Pers. Prop. 517; sed cf. Gil- 387; Eels v. Lynch. 8 Bosw. 465, 475. bert. Uses & Trusts, 251. Estates in " Severalty," " Joint," or " Common." 329 § 55. Estates in severalty, joint tenancy and in common. — Estates in respect to the number and connection of their owners, are divided into estates in severalty, in joint ten- ancy and in common; the nature and properties of which respectively, shall continue to be such as are now estab- lished by law, except so far as the same may be modified by the provisions of this chapter. Formerly i Revised Statutes, 726, section 43 : § 43. Estates, in respect to the number and connexion of their owners, are divided into estates in severalty, in joint tenancy and in common; the nature and properties of which respectively, shall continue to be such as are now established by law, except so far as the same may be modified by the provisions of this Chapter.^^ Estates in Possession as at Common Law. In these pages, and par- ticularly under section 20 of this article, the term " estate " was considered at some length,™ and it was intimated that the common law, and not the statute law, still regulated in New York the quantity and the quality of estates in possession.''^ That proposition is con- firmed by this section. Future Estates. The common law, regulating the limitation of future estates or estates not in possession, has been extensively remodeled by the original of this article,^^ but the incidents of es- tates in possession remain as before. Estates in Severalty, Joint Tenancy, and in Common. What is an es- tate in severalty or in joint tenancy or in common is defined by the common law. These are essentially terms of the old law. Black- stone states : " He that holds lands or tenements in severalty, is he that holds in his own right only." ^^ Joint tenants hold not in severalty but conjointly, and the survivor takes all unless the estate, during the joint dominion, has been previously severed or par- titioned.''* Tenants in common hold severally but by unity of pos- session, because none knows his own severalty. The jus accrescendi, «9 Repealed, chap. 547, Laws of 1896. ^4 Strahan, Property, 123, 125. Par- ''O Supra, pp. 132-137. tition, after statute of Hen. VIII, ''^ Supra, pp. 47, 131. could be compelled. 2 Black. Comm. ■f^Art. I, tit. II, chap, i, part II, 179-187; Challis, 294; Miller v. R- S. Emans, 19 N. Y. 384, 388. ''^2 Black. Comm. 179. 330 Estates in " Severalty," " Joint," or " Common." or right of survivorship, is not a legal characteristic of tenancy in commonJ^ Tenancy in common was, for all practical purposes at common law, a sole ownership of an undivided share, and one tenant in common might convey his share to another,^® but not release to another.'''^ re 2 Black. Comm. 191. " Miller v. Emans, 19 N. Y. 384, TSChallis, 297; Taylor v. Millard, 388, citing Shep. Touch. 326, 327. 118 N. Y. 244. When Estates Held Jointly or in Common. 331 § 56. When estate in common ; when in joint tenancy. — Every estate granted or devised tO' two or more persons in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy; but every estate vested in executors or trustees as such, shall be held by them in joint tenancy. This section shall apply as well to estates already created or vested as to estates hereafter granted or devised. Formerly i Revised Statutes, 727, section 44: § 44. Every estate granted or devised to two or more persons, in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy; but every estate, vested in executors or trustees as such, shall be held by them in joint tenancy. This section shall apply as well to estates already created or vested, as to estates hereafter to be granted or devised.'^s History of the Enactment Embodied in Section 56. In the early feudal law of England, as a joint tenancy, with its incident of survivorship, was better adapted to military tenures than a more divisible tenancy, joint tenancy was implied rather than tenancy in common.™ Con- sequently it came about that at common law, if lands were limited to several persons by name they held as joint tenants,®" unless it was expressly declared that they should hold as tenants in common.^^ But by conveyance of a freehold estate to husband and wife sim- pliciter they took as tenants by entireties.®^ In the year 1782, the Legislature modified the rule in New York so as to provide that unless a grant or devise was expressly declared to be in joint tenancy it should be taken to be a tenancy in common.®^ In 1786 another statute excepted conveyances and devises to executors and trustees from the operation of this new rule. The Revised Statutes re- modeled the rule. As thus re-enacted, the statute of 1782 has since furnished the rule of construction of grants and devises in this State.®* T8 Repealed, chap. 547, Laws of 82 Challis, 303 ; 2 Black. Comm. 182 ; 1896. Joos V. Fey, 129 N. Y. 17; Strahan, ^* Lee, Abstracts of Title, 145. Property, 135. 80 Litt, §§ 277, 281 ; Purdy V. Hayt, 83 Chap. 2, Laws of 1782 (6th 92 N. Y. 446, 452; Strahan, Property, session). 120. 84 Chap. 12, Laws of 1786 ; i J. & V. 81 Co. Litt 183b; 2 Black. Comm. 24s, § 6; i K. & R. 44; i R. L. of 180. 1813, at p. 54; I R- S. 727, § 44. 332 When Estates Held Jointly or in Common. Gifts to a Class. The rule stated in this section^^ is now so abso- lute that by analogy a gift of income to beneficiaries as a class is presumed to be to them as tenants in common and not as joint tenants.** Trustees Hold as Joint Tenants. The Revised Statutes declared with emphasis that every estate vested in executors and trustees as such was to be a joint tenancy, without reference to the terms of the limitation. It went further in this particular than the law of 1786.*' The foregoing section of this act now furnishes the final statutory expression of the rule of construction relative to grants and devises to two or more persons. Object of This Section. The plain intention of this section was to favor tenancies in common by construction.^ After the abolition of primogeniture as a rule of descent and tenures at common law, equality of division and divisibility of estates became the rational, as well as the equitable, principle, and thus triumphed as the rule of law. Disseisors. Notwithstanding this section, disseisors coming in by the same disseisin would no doubt still hold as joint tenants.** How Joint Tenancy Created. In order to create an estate in joint tenancy it is not necessary to employ the words in joint tenancy. Any other expression clearly imputing such an intent is sufficient.®" But a gift " to 'A.,' ' B.,' and ' C as joint tenants and tenants in common," is construed as a tenancy in common and not a joint tenancy.®^ Presumptions. Where there is a devise to a number of persons by their individual names, giving an equal share to each, without words applying strictly to a class, etc., they take as tenants in com- 85 § 56, supra, p. 331. p. 615 ; Matter of Eldredge, 29 Misc. 86 Moffett V. Elmendorf, 152 N. Y. Rep. 734, 736 ; Steinway v. Steinway, 475 ; Tompkins v. Verplanck, 10 App. 163 N. Y. 183, 197 ; Matter of Kim- Div. 572, 576, and cases cited, 154 berly, 3 App. Div. 170; Jones v. Hand, N. Y. 634; Matter of Russell, 168 78 id. 56; Matter of Conger, 81 id. id. 169, and see under § 76 that bene- 493, 502. ficiaries of a trust take as tenants in ^9 Qf Qoodeve, Real Prop. (3d common. ed.), pp 240; (4th ed.), p. 253. ST Everitt v. Everitt, 29 N. Y. 39, »<> Purdy v. Hayt, 92 N. Y. at 72; cf. Lorillard v. Coster, s Paige, p. 453; Coster v. Lorillard, 14 Wend, at p. 229; Purdy v. Hayt, 92 N. Y. 342. 446, 452, 4S3. *^ Walter v. Ham, 68 App. Div. 381. 88 Dana v. Murray, 122 N. Y. at When Estates Held Jointly or in Common. 333 mon, and consequently lapsed devises go into the residuum and not to the survivors.^^ A gift to a class will not be presumed, but rather that the donees take as tenants in common.®^ Incidents of Tenancy in Common. Tenants in common as well as joint tenants may now have partition inter se.^ At the present day one or more tenants in common may bring ejectment.®^ But one tenant in common may not bind his cotenant by estoppel or other- wise,®® nor, in the absence of an agreement, charge him for collect- ing the rents of the estate.*^ But he must account to his cotenant for same, or for property sold by him off the estate.^® Tenants in common are jointly liable for work done on the estate if authorized by them,®® and they may be so bound by implication or acquiescence even -^ but not by mere knowledge.^ One tenant in common may be liable to another for use and oc- cupation,^ or as trustee of outstanding interests purchased, and beneficial to the estate.* Lessees. Lessees take and hold as tenants in common, unless it is otherwise specified.^ Tenants by Entireties. It was soon well settled that this section did not apply to conveyances of freeholds ® to husband and wife, who continued to take as tenants by entireties, as they were 92Moffett V. Elmendorf, 152 N. Y. v. Nunn, 151 id. 506; Ferris v. Nel- 475 ; McDonald v. McDonald, 71 App. son, 60 App. Div. 430. Div. 116; Langley v. Westchester 99 ]y[atter of Robinson, 40 App. Div. Trust Co., 39 Misc. Rep. 735; Man- 23. hattan Real Estate Assn. v. Cudlipp, 1 Valentine v. Healy, 158 N. Y. 369; 80 App. Div. 532, 535. cf. Loos V. Wilkinson, 113 id. 485; 93 Matter of Russell, 168 N. Y. 169; Pretzfelder v. Strobel, 17 Misc. Rep. Manhattan Real Estate Assn. v. Cud- 152. lipp, 80 App. Div. 532 ; Matter of Con- 2 Cosgriff v. Foss, 152 N. Y. 104. ger, 81 id. 493, 503. s Collins v. Collins, 8 App. Div. 9* § 1532, Code Civ. Proc. 502 ; cf. Mott v. Underwood, 148 95 § 1500, Code Civ. Proc. N. Y. 463; Valentine v. Healey, 178 9« Ryder v. Coburn, 47 App. Div. id. 391 ; Willes v. Loomis, 94 App. 182; Crippen v. Morse, 49 N. Y. 63, Div. 67. 68; Palmer v. Palmer, 150 id. 139; * Allen v. Arkenburgh, 2 App. Div. cf. Sweetland v. Buel, 164 id. 541. 452. 9T Myers v. Bolton, 157 N. Y. 393, 5 McPhillips v. Fitzgerald, 76 App. 399 ; cf. Collins v. Collins, 8 App. Div. Div. 15, 21. at p. 507. 8 Preston states that this tenancy 98 Gedney v. Gedney, 160 N. Y. 471 ; is also applicable to terms of years. Cosgnff v. Dewey, 164 id. i ; Knope 2 Abst. Tit. 39, and so Goelet v. Gori, 31 Barb. 314, et supra note 5. 334 When Estates Held Jointly or in Common. formerly one person in contemplation of lawJ Nor did the Mar- ried Women's Acts of 1848, 1849, i860, 1862, and 1880 disturb this exception to the statutory rule,^ and, at the present day, unless there are words prescribing the kind or quality of estates each shall take, husband and wife are still seised as tenants by entireties per tout and not per my, and upon the death of either the survivor takes the whole, no matter who pays the consideration.® Where, how- ever, it appears from the words of the grant or devise that the in- tent was to create a joint tenancy, or a tenancy in common, husband and wife take as joint tenants or as tenants in common.^** Where husband and wife are seised as tenants by entireties the husband does not now, as at common law he did,^^ possess the exclusive right and control of the lands during the lives of himself and wife.'^ Divorce a vinculo matrimonii severs the tenancy by entireties and former husband and wife then become tenants in common.^^ A deed to alien husband and citizen wife may vest the whole estate in the wife.^* But it seems the statute relative to partition did not apply to tenancy by entireties.^^ But by section 26 of the Domestic Re- ■^ Jackson v. Stevens, 16 Johns, unity of husband and wife, Taylor v. 109, 116; Sutliff V. Forgey, i Cow. Klein, 47 App. Div. 343, 346. 3i-g5 ; Doe v. Howland, 8 id. 277-283 ; 10 Ward v. Crum, 54 How. Pr. 95 ; Rogers v. Benson, s Johns. Ch. 431 ; Miner v. Brown, 133 N. Y. 308. Miller V. Miller, 9 Abb. Pr. (N. S.) ^Cf. Challis, 304; Hiles v. Fisher, 444; Wright V. Sadler, 20 N. Y. 230; 144 N. Y. 306, 313; Brown v. Brown, Torrey v. Torrey, 14 id. 431. 79 Hun, 44; Joos v. Fay, 129 N. Y. SBertles v. Nunan, 92 N. Y. 152, 17; Wurz v. Wurz, 27 Abb. N. C. 157; Goelet V. Gori, 31 Barb. 314; 58; Cloos v. Cloos, 24 id. 219. Farmers' Bank v. Gregory, 49 id. 12 Bertles v. Nunan, 92 N. Y. 152; iSS; Zorntlein v. Bram, 100 N. Y. 13; Hiles v. Fisher, 144 id. 306; Grosser Steltz V. Schreck, 128 id. 263 ; O'Conor v. City of Rochester, 148 id. 233 ; V. McMahon, 54 Hun, 66; Reynolds Graney v. Berrie, 31 App. Div. 285. V. Strong, 82 id. 202 ; O'Connell v. is Stelz v. Shreck, 128 N. Y. 263 ; Madden, 26 St. Rep. 251; Price v. cf. Strahan, Property, p. 135, as to Pestka, 54 App. Div. S9; cf. Meeker English rule, v. Wright, 76 N. Y. 262. 1* Wright v. Saddler, 20 N. Y. at 9 Missing v. Missing, 64 App. Div. p. 326. 125 ; cf. as to bond and mortgage, I6 Miller v. Miller, 9 Abb. Pr. taken in name of husband and wife, (N. S.) 444; Messing v. Messing, 64 Wilcox v. Murtha. 41 App. Div. 408 ; App. Div. 125 ; Zorntlein v. Bram, 100 and as to deposit in bank in joint N. Y. 12; Banzer v. Banzer, 10 Misc. names, Wetherow v. Lord, 41 App. Rep. 22. Div. 413; and as to continued legal When Estates Held Jointly or in Common. 335 lations Law they may have partition.^® The interests of tenants by entireties may be sold under an execution. Conveyances to Husband and Wife and a Third Person Simpliciter. Such being the rules regarding conveyances to husband and wife, it fol- lows that the common law would control conveyances to husband, wife, and a third person simpliciter, and that the latter would have a moiety for his share, and the husband and wife take the other moiety between them.-"^ Where the estate is limited to a husband and his wife and a third person as tenants in common at common law, each was tenant of a third part,^* and, doubtless, this is now a fortiori the rtile of construction under this section of " The Real Property Law." Partners Take as Tenants in Common. We must next consider con- veyances of land to persons being partners in trade. Chancellor Walworth states that at common law they took primarily as joint tenants, and that in New York the rule was changed by the statutes mentioned above.^® But in equity the rule was always quite other- wise, and the great maxim^ of the common law, "Jus accrescendi inter mercatores pro beneftcio commercii locum non habet," was applied to purchasers of real estate by partners no matter in whose name the purchase was made. Consequently partnership realty was never subject to survivorship.^" And such, on general prin- ciples, would, no doubt, have become the rule in this State, in re- spect of partnership realty, quite irrespective of this section of The Real Property Law and the other statutory enactment displaced thereby.^^ As by statute in this State several persons, including partners, take as tenants in common unless it is otherwise prescribed, partners as such have the rights and powers which accrue to this tenancy. Each may convey or mortgage so as to transfer all the title he lias.^^ Even an agreement between partners that they hold 1^ Chkp. 272, Laws of 1896; chap, child v. Fairchild, 64 N. Y. 471, 477; 48, General Laws. Lake v. Gibson, i Eq. Cas. Abr. 294; I'' Burton, Compend., § 757 ; Litt., s. c, i White & Tudor. Lead. Cas. in § 291 ; Smith, Compend. Law Real & Eq. 215 ; Lake v. Craddock, 3 P. Wms. Pers. Prop. 177. 158; s. c, i White & Tudor, Lead. 18 I Prest. Est. 132. Cas. in Eq. 217, and notes. 18 Buchan v. Sumner, 2 Barb. Ch. 21 Supra, p. 331. at p. 198. 22 Hiscock v. Phelps, 49 N. Y. 97, 20 Story, Eq. Juris., § 1207; 2 102; Matter of Jones, 69 App. Div. Spence, Eq. Juris. 399; Smith, Com- 237, 242; McPhillips v. Fitzgerald, 76 pend. Real & Pers. Prop. 172; Fair- id. 15, 21. 336 When Estates Held Jointly or in Common. jointly does not now create a joint tenancy.^^ In the liquidation of partnership dealings real estate is in this country treated as per- sonalty, and what remains after payment of debts and adjusting equities is treated as real estate and goes to the respective heirs of the tenants in common.^ 23 Supra, p. 335. Smith v. Cowles, 8i App. Div. 328 ; 24 Hiscock V. Phelps, 49 N. Y. at p. Hauptmann v. Hauptmann, 91 id. 197 ; 477; Greenwood v. Marvin, iii id. Huber v. Case, 93 id. 479; Barney v. 423 ; Darrow v. Calkins, 154 id. 503 ; Pike. 94 id. I99- Sale of Life Estate and Remainders. 337 § 57. Sale of real property held by tenant for life with contin- gent remainder or remainders over to persons whose identity is unknown. — In any case where real property is devised by will or conveyed by deed to a person for life, with con- tingent remainder or remainders over, to persons the identity of whom, cannot be definitely ascertained until the death of the person entitled to the life estate, the supreme court may by order, on such terms and conditions as seems just and proper, authorize the sale of such real property, or any part thereof, whenever it appears to the satisfaction of the court that said real property, or some portion thereof, has become so unproductive or such circumstances or conditions have arisen subsequent to the devise or deed that it is for the best interest of the life tenant and of the remaindermen that a sale should be had, or that for other peculiar reasons, or on account of other peculiar circum- stances, it is for the best interest of the life tenant and the remaindermen that a sale should be had. The supreme court shall not grant such an order, unless it appears to the satisfaction of such court, that a written notice, stating the time and place of the application therefor, has been served upon the life tenant, and upon every other person in being having an estate, vested or contingent, in reversion or re- mainder in said real property, at least eight days before the making thereof. If such beneficiary or other person is an adult without the state, or is a minor, lunatic, person of un- sound mind, habitual drunkard or absentee, notice shall be served on such beneficiary or other person in such man- ner as the court or a justice thereof may prescribe. Upon the return day of the notice the court shall, upon its own motion, appoint a special guardian for any minor and for any lunatic, person of unsound mind or habitual drunkard who shall not be represented by a committee duly ap- pointed.^^ Comment. This section is an amendment to The Real Property Law, being enacted in 1903 by chapter 432 of the laws of that year. The object of the section is apparent. It was held in the year 1880 that a judicial sale only concludes contingent interests of persons 25 Enacted by chap. 432, Laws of 1903, and became a law May 7, 1903, with the approval of the Governor. 22 338 Sale of Life Estate and Remainders. not in being, when the judgment provides for and protects such interests by substituting the fund derived from the sale of the land in place of it and preserving the fund to the extent necessary to satisfy such interests.^ In 1896 it was held that the Legislature had power by special act to authorize a sale of contingent interests of those not in being.^^ This section is in line with that decision. Remainders which Open, etc. This act applies to contingent remain- ders. Whether it is also applicable to vested remainders which open and let in is problematical. Such interests are not " contingent re- mainders," and yet the limitations of such interests are contingent limitations, as I have shown under sections 30 and 32 of this act. 28 Monarque v. Monarque, 80 N. Y. 27 Ebling v. Dreyer, 149 N. Y. 460 ; 320 ; Wilson v. White, 109 id. 59, 61 ; cf. § 2348, Code Civ. Proc, amd. by see under § 46, supra, p. 305. chap. 154, Laws of 1903. Application to Sell Remainders, Etc. 339 § 58. Application, how made. — The application must be made by petition duly verified, which shall set forth the provi- sions of the will or the deed creating the estate, the con- dition of the estate and the particular facts which make it necessary or proper that the application should be granted. After taking proof of the facts either before the court or by a referee and hearing the parties and fully examining into the matter, the court must make an order upon the application. In case the application is granted, the order must authorize the real property described in the petition to be sold upon such terms and conditions as the court may prescribe.^ Comment. This section is to be read in connection with the pre- ceding section. It was enacted at the same time by chapter 432, Laws of 1903. The sale of contingent interests of infants, or of persons not yet in being, is a very delicate matter,^ and one no doubt to be exercised only when the case is clearly within the stat- ute; although the power of the Legislature to enact such a law as this has been directly afifirmed.^" The petition should show the con- sent of the tenant of the life estate supporting the remaindf rs.^^ The act contemplates that the proceeding shall be based on a peti- tion only, and not be instituted by action. But there must be a hear- ing viva voce on the petition.^^ As the proceeding is statutory, the statute must be strictly pursued. The petition must show an out- standing life estate, life tenant's consent to sale, and contingent, not vested, remainders over to persons whose identity is uncertain. It is evident, therefore, that the statute contemplates a sale only where there is a remainder contingent because it is to persons not yet in being. Where the remainder is contingent only because it is to sur- vivors of two or more certain persons in being, it would seem that sections 57 and 58, if construed strictly, have no application.^^ 28 Enacted by chap. 432, Laws of ^° Ebling v. Dreyer, 149 N. Y. 460. 1903. ^^ Vide infra, under § 60, The Real 29 Monarque v. Monarque, 80 N. Y. Prop. Law. 320; Wilson V. White, 109 id. 59, 61; 32 !„ re Hunt, 30 N. Y. Law Jour. cf. Kent V. Church of St. Michael, 136 922, Dec. 15, 1903. id. 10, 17; Kirk v. Kirk, 137 id. 510, ''^ Sed cf. § 60, The Real Prop. 516 ; McGillis v. McGillis. 154 id. 532, Law, infra. And as to " remainders 548; Adams v. Backer, 29 Misc. Rep. which open and let in," see pp. 231, S3 ; and see p. 305, supra. 262, 263, 338, supra. 340 Sale of Remainders, Etc. § 59. Sale, how conducted. — The sale shall be made by a ref- eree appointed by the court for that purpose and such sales may be either at pubHc auction or by private contract, but subject in all respects to confirmation by the court before the deed is delivered and the sale consummated. In case a sale of any portion of such real property is au- thorized, the final order must direct the disposition of the proceeds of such sale and must direct that the proceeds of such sale be paid into the hands of some trust company authorized by law to act as trustee or to some person or persons who shall thereby become trustee or trustees for such life tenant and remaindermen, and must require the trustee to give a bond in such an amount and with such sureties as the court directs, conditioned for the faithful discharge of his trust and for the due accounting of all moneys received by him pursuant to said order. Upon the confirmation of the referee's report of sale by order of the court, the referee must execute, as directed by the court, a deed of said real property so sold.^* Comment. This section was enacted by chapter 432, Laws of 1903, and is strictly auxiliary, being dependent upon the two preceding sections of this act. The sale contemplated by this section must be made by a referee, specially appointed for that purpose. A referee appointed under the preceding section would not be a referee to sell unless redesignated or specially empowered to sell. It is very plain that until the sale is confirmed by the court that the purchaser takes nothing.^^ The court is the vendor. This was and is the chancery rule and that one acted on in the Federal courts of equity. 3* Enacted by chap. 432, Laws of 35 Rorer, Judicial Sales, § 2. 1903 ; became a law May 7, 1903. Conveyances of Life Estate and Remainders. 341 § 60. Conveyances upon sale. — A deed made pursuant to a final order granted, as provided in this act, shall be valid and efifectual against all minors, lunatics, persons of un- sound mind, habitual drunkards and persons not in being, interested in the real property aforesaid, or having estates, vested or contingent, in reversion or remainder in said real property, but before the order directing the sale can be made, all adult persons not under disability having an interest in said real estate, vested or contingent, in rever- sion or remainder, must make and file with the clerk of the court in which the proceedings have been instituted, a written instrument, duly executed and acknowledged, consenting that such an order of sale may be made, and in no event shall such order be made without the like writ- ten consent of the life tenant if not suffering from dis- ability.^® Comment. This section is also strictly auxiliary and to be taken in connection with the three preceding sections, enacted at the same time and by the same act, chapter 432, Laws of 1903. This section contemplates that all adult parties to the special pro- ceeding, not resting under a disability, shall make and file a con- sent to the sale. In no event can a sale of the fee be made without the consent of the life tenant. This is analogous to partition sales had at the instance of those in reversion or remainder. 36 Enacted by chap. 432, Laws of 1903. , ! 342 Proceeds of Sale of Remainders, Etc. § 6i. Disposition of proceeds of sale. — The trustees appointed by the court of funds reaHzed from the sale of real property under these provisions shall, unless otherwise ordered by the court, invest such funds in the manner and form pre- scribed and regulated by law, relative to investment of trust funds by trustees, and shall pay and apply the net income, after deducting- all lawful expenses and commis- sions, to the use of the life tenant during life and upon the death of the life tenant pay over and distribute the principal to and among the remaindermen entitled thereto in ac- cordance with the order of the court upon an accounting. ^^ Comment. This section is strictly auxiliary and dependent upon sections 57, 58, and 59 of this act. It was enacted at the same time with those sections by chapter 432, Laws of 1903. In Monarque v. Monarque it was held that a judgment and judicial sale conclude contingent interests of persons not in being only when the judg- ment provides for and protects such interests, by substituting the fund derived from the sale of the land in place of it, and preserving the fund to the extent necessary to satisfy such interests.^^ In Ebling v. Dreyer^^ it was held that the Legislature had the power to authorize a sale of the contingent interests of those not yet in being. This section is not explicit in directing that the fund shall be sub- stituted for the land sold. But it evidently contemplates that the rights of persons unborn shall be sufficiently safeguarded by some order in the proceeding; for otherwise the proceeding would be irregular, notwithstanding this act.*" End of Article. Section 61 now ends this article of the statute. 3T Enacted by chap. 432, Laws of *" Monarque v. Monarque, 80 N. Y. 1903, to take effect immediately. 320; Myers v. McCullagh, 63 App. 38 80 N. Y. 320. Div. 321, 327; Matter of Asch, 75 id. 39 149 N. Y. 460. 486, 495. The Real Property Law. 343 ARTICLE IIL^ Uses and Tiusts. Section 70. Executed uses existing. 71. Certain uses and trusts abolished. 72. When right to possession creates legal ownership. 73. Trustees of passive trust not to take. 74. Grant to one where consideration paid by another. 75. Bona fide purchasers protected. 76. Purposes for which express trusts may be created. ^^. Certain devises to be deemed powers. 1 This article on Uses and Trusts is simply a redaction of the earlier arti- cle in the Revised Statutes on the same subject. It must always be re- membered that when the Revised Statiites were first enacted the old systems of law and equity were in full force. The history of Uses and Trusts is a part of the history of equity jurisdiction in England and in the Crown-province of New York. From the inception of the government of New York by the English, the equity powers of the Lord Chancellor were lodged somewhere, and after the year 1683 the distinctions observed in England between the forums of law and equity were fully established in New York. The local Chancellor had jurisdiction over trusts, but uses exe- cuted into legal estates by the Statute of Uses (always in force in New York as part of the socage tenure) were cognizable in the common-law courts of the province. The present writer has traced the jurisdiction of the courts of equity and law in the province of New York so frequently that he may be pardoned for referring the reader to his own fuller citations of authorities, as it avoids the neces- sity of unnecessary repetition of mat- ters, less and less frequently con- sulted. (See chapters VI and VII History of the Law of Real Property in New York; notes to the Grolier edition of Bradford's Laws of New York in 1694, and particularly the citations of authorities.) It was through the machinery of the judicial establishment of the province of New York that the distinctions between legal and equitable estates, and be- tween uses and trusts, distinctions familiar to the law of England in the last two centuries, were established and perpetuated in New York. When the State Constitution of 1846 was established and the courts of law and equity consolidated and the practice in both assimilated, the distinction be- tween uses and trusts had become so ineradicable in the law of New York as to survive even these reforms. (Gould V. Cayuga County Bank, 86 N. Y. 75, 83; Peters v. Delaplaine, 49 id. 362, 370; Chipman v. Montgomery, 63 id. 221, 230; Town of Mentz v. Cook, 108 id. 504 ; Corscadden v. Has- well, 88 App. Div. 158; Gilbert v. Brunell, 92 id. 284.) The strength of this survival was, no doubt, partly due to the statutory revision of the law of Uses and Trusts in the Re- vised Statutes. 344 Executed Uses. Section 78. Surplus income of trust property liable to creditors. 79. When an authorized trust is valid as a power. 80. Trustee of express trust to have whole estate. 81. Qualification of last section. 82. Interest remaining in grantor of express trust. 83. What trust interest may be aliened. 84. Transferee of trust property protected. 85. When trustee may convey trust property. 86. When trustee may lease trust property. 87. Notice to beneficiary where trust property is conveyed, mort- gaged or leased. 88. Person paying money to trustee protected. 89. When estate of trustee ceases. 90. Termination of trusts for the benefit cf creditors. 91. Trust estate not to descend. 92. Resignation or removal of trustee and appointment of successor. 93. Grants and devises of real property for charitable purposes. 94. Investments in stocks or bonds of corporations by trustees, etc. § 70. Ex«cuted uses existing — Every estate which is now held as a use, executed under any former statute of the state, is confirmed as a legal estate. Formerly i Revised Statutes, 727, section 46 : § 46. Every estate which is now held as an use, executed under any fotmer statute of this state, is confirmed as a legal estate.^ Account of this Section 70. The foregoing section has distinct refer- ence to the Statute of Uses, and to a state of things existent in the law of England prior to 2^ Henry VIII, when the Statute of Uses was passed, fastening the possession and legal title to a certain fiduciary interest called the " use," which, before then, was only cognizable in chancery.* This important statute of England was, by extension, in force in the province of New York, after the English occupation, in the year 1664.* It is one of the English statutes revised by Jones and Varick,^ under the act of the State Legislature, authorizing them to revise only those English statutes extending to 2 Repealed, chap. 547, Laws of 1896. was to be holden by the socage tenure 827 Hen. VIII, chap. 10; Downing as it then existed in England. This v. Marshall, 23 N. Y. at p. 378; Sea- involved all statutes, not repealed, man v. Harvey, 16 Hun, 71, 73 ; John- antecedently affecting this tenure, son v. Fleet, 14 Wend. 176, 180 ; Cuy- ^ 2 J. & V. 68 ; Bennett v. Garlock, ler V. Bradt, 2 Cai. Cas. 326. 10 Hun, 328, 337, 338. *The patent to the Duke of York Executed Uses. 345 the province,® and adopted by the first Constitution of the Stated It was afterward continued in those several revisions of the law of the State preceding the Revised Statutes.® When the Revised Stat- utes subjected the entire law of Uses and Trusts to a general scheme of reform,® the revisers first abolished, for the future, all uses and trusts, except those expressly authorized, in the Revised Statutes ; but naturally at the same time they saved all legal estates which then existed in New York as executed uses solely under and by force of the old Statute of Uses.-''* The revisers, in their note to this sec- tion of the original revision, distinctly announce this, for they expressly say : " It seems proper to confirm all uses already ex- ecuted as legal estates, in order to prevent the possible construction that they are included in the general abolition of uses." ^^ Distinction between Uses and Trusts. The distinction between an executed use, under the Statute of Uses, and a trust which, after that statute, was not executed, is apparent,^^ and still exists, even under the Revised Statutes and this act.^^ ^ Chap. 35, Laws of 1786. ^ Appendix II, infra. '' i 3S, Const, of 1777. 12 Cuyler v. Bradt, 2 Cai. Cas. 326 ; 8 I K. & R. 66 ; I R. L. 72. Fisher v. Fields, 10 Johns. 495 ; John- 8 Art. II of chap. 1, pt. 2, R. S. son v. Fleet, 14 Wend. 176 ; Burgess 10 I R. S. 724, § 46 ; Bennett v. Gar- v. Wheate, i Eden, at p. 216. lock, ID Hun, 328, 338. 13 j/ide infra, et § 76. 346 Certain Uses and Trusts Abolished. § 71. Certain uses and trusts abolished Uses and trusts con- cerning real property, except as authorized or modified by this article, have been abolished; every estate or interest in real property is deemed a legal right, cognizable as such in the courts, except as otherwise prescribed in this chapter. Formerly i Revised Statutes, 727, section 45 : § 45. Uses and trusts, except as authorized and modified in this Article, are abolished; and every estate and interest in lands, shall be deemed a legal right, cognizable as such in the courts of law, except when otherwise pro- vided in this Chapter.!* Object of this Section. This section is part of a scheme larger than a mere revision of the former Statute of Uses. The original re- visers, in their note to this section, outlined very fully the general scheme of their reform in the old law of uses and trusts.^^ They desired to abolish all passive or naked trusts, and to cause the legal title to estates to devolve on, or descend to, heirs in all cases where some good purpose was not subserved by the trustee's taking the legal title.!® Trust settlements of estates had theretofore in New York not been frequently employed in practice, and the time was, consequently, not inopportune for so radical a change in this an- cient law of English-speaking peoples. Before the reform could be consummated, however, much litigation ensued, involving practi- cally every section of the Revised Statutes relating to estates in lands. The decisions of the higher courts are, therefore, a neces- sary complement of the Revised Statutes concerning real property. The Intent of this Section. The original of this section was then a part of an announced attempt to restore the design of the old Statute of Uses (27 Hen. VIII, chap. 10), adapted in New York," and thus finally to abolish all uses and trusts not expressly author- ized by law.^* With this design in view, the section of the statute was followed by two others taken to some extent out of the former 1* Repealed, chap. 547, Laws of 1896. ^^ Supra, p. 344 ; Eysaman v. Eysa- 15 yide infra. Revisers' note, with man, 24 Hun, 430, 433; 2 J. & V. 68; article on Uses and Trusts, Appendix i R. L. 72. II ; Eysaman v. Eysaman, 24 Hun, 1* Eysaman v. Eysaman, 24 Hun, 4,30, 433 ; Johnson v. Fleet, 14 Wend. 430, 433 ; Leggett v. Perkins, 2 N. Y. 176; Rawson v. Lampman, 5 N. Y. 297, 307; Rawson v. Lampman, s id. 456 ; Downing v. Marshall, 23 id. 366, 456, 462 ; Townshend v. Frommer, 125 378, 379, 380. id. at p. 457. 1® Townshend v. Frommer, 125 N. Y. at p. 458, and cases last cited. Charitable Uses. 347 Statute of Uses.^® The section of the Revised Statutes now under consideration expressly aboHshed all uses and trusts not saved or justified by some provision of the article on Uses and Trusts.^" Did this Enactment Abolish Charitable Uses? The first question of importance made under the original of this section was, " whether charitable uses and trusts (or those indefinite and uncertain uses and trusts intended to benefit the public or a class where no par- ticular interest vested), were intended to be abolished thereby ?"^^ After great fluctuation of judicial opinion, embracing forty-three years, it was finally held that charitable uses and trusts were within the purview of the Revised Statutes,^^ and, therefore, that they were abolished, and that no charitable use or trust was since valid at law or in equity unless it complied with the Revised Statutes and some particular interest vested in a definite person entitled to enforce the trust.^* Consequently an express trust for charity in New York stood until a statute passed in 1893,^* on the same basis as a trust for a person not engaged in charitable endeavor.^ It was subject to the rule concerning suspension of the power of alienation di- rected against a perpetuity.^® If the trust was valid only as a power, it was still subject to the same rules concerning definiteness of the beneficiary^ and suspension of the power of alienation.^* In short, the ancient characteristics of charitable uses — permanence in the duration of the trust, and indefiniteness of the beneficiaries — 1*1 R. S. 727, §§ 47, 49, now §§ 72 Alcock, 108 id. 312; Tilden v. Green, and 73, infra, of the Real Prop. Law. 130 id. 29. 29 Art. 2, chap, i, pt. 2, R. S., being 24 Chap. 701, Laws of 1893. now art. Ill of The Real Property 25 Levy v. Levy, 33 N. Y. at p. 124 ; Law here under consideration. Bascom v. Albertson, 34 id. 584 ; Cott- 21 Shotwell, Exr. v. Mott, 2 Sandf. man v. Grace, II2 id. 299, 306, 307; Ch. 46, 49, 52 ; Ayres v. Meth. Church, Cruikshank v. Home for the Friend- 3 Sandf. 351; Williams v. Williams, 8 less, 113 id. 337, 350; People v. Si- N. Y. at pp. 554-559. monson, 126 id. 299, 307. 22 Clemens v. Clemens, 37 N. Y. 59, 26 Bascom v. Albertson, 34 N. Y. 76; Holmes v. Mead, 52 id. 332; Hoi- 584. 6i9- land V. Alcock, 108 id. 312, 336; Cott- 27 Pgsdick v. Town of Hempstead, man v. Grace, 112 id. 307; Fosdick v. 125 N. Y. at p. 592; Tilden v. Green, Town of Hempstead, 125 id. 581. 130 id. 29; People v. Powers, 147 id. 23 Phelps V. Pond, 23 N. Y. at p. 77 ; 104. Downing v. Marshall, id. 366, 382 ; 28 Booth v. Baptist Church, 126 N. O'Hara v. Dudley, 95 id. 403 ; Read v. Y. 215. Williams, 125 id. 560, 569; Holland v. 348 Charitable Uses. were no longer allowed under the Revised Statutes.^* Consequently, from 1830 until 1893, the only legal mode of limiting estates per- manently in trust for the benefit of the poor, or other indefinite objects, consisted in a limitation absolute to a charitable corporation, whose charter supplemented the trust features and whose chartered vocation permitted the amelioration of an indefinite class.^" The limitation in such a case was not in trust or a charitable use, but a gift absolute to a charitable corporation. It is greatly to be re- gretted that the courts ever held that charitable uses were abolished by the Revised Statutes. Restoration of Charitable Uses. In 1 893 the Legislature, finding too many charitable foundations defeated by the new judicial canon, that no valid trust could be made for the benefit of no one in par- ticular, incerta personcs,^^ passed a law,^^ which provided, in sub- stance, that no gift, grant, bequest or devise to religious, educational, charitable or benevolent uses which, in other respects, was valid under the laws of the State should be deemed invalid by reason of the indefiniteness or uncertainty of the beneficiaries. The substance of that act has now become part of the article on Uses and Trusts,^^ with the elifect, no doubt, of abrogating that principle formerly determined, that there could not be, under the Revised Statutes, a trust for the benefit of an indefinite set of beneficiaries. This amendment, it was argued at first, could not relieve charitable limi- tations from the necessity of conforming to the existing rule against perpetuities,^* which, before the Revised Statutes, was not gener- ally applicable to charitable settlements,'^ except as to the time of their vesting in possession or interest.'* But a strong and suc- cessful argument was made, that the legislative eflfect of chapter 701 of the Laws of 1893 and section 93 of the present article on 29 Dodge, Exr. v. Pond, 23 N. Y. 69. 33 § g^^ infra, The Real Prop. Law. 30 Ayres v. Meth. Church, 3 Sandf. 34 § 32, The Real Prop. Law ; Allen 351 ; Yates v. Yates, 9 Barb. 324; King v. Stevens, 22 Misc. Rep. 158, 33 App. V. Rundle, 15 id. 139 ; Levy v. Levy, Div. 485. 33 N. Y. 97, 108 ; Bascom v. Albert- 36 Lewis Perp. 688, 689 ; Williams v. son, 34 id. at pp. 612, 613 ; Holland v. Williams, 8 N. Y. at p. 535 ; Shotwel!, Alcock, 108 id. 312, 336. Exr. v. Mott, 2 Sandf. Ch. 53. 31 Dammert v. Osborn, 140 N. Y. 36 Challis, 157 ; Rose v. Rose, 4 Abb. 30, 43. Ct. App. Dec. 108. 32 Chap. 701, Laws of 1893 ; am'd, chap. 291, Laws of 1901. Certain Uses and Trusts Abolished. 349 Uses and Trusts, was to restore charitable uses as they were at common law, independently of the Statute of Charitable Uses,^'' and even to except charitable uses altogether from the operation of section 32 of the article on " Creation and Division of Estates." ^* What Other Uses antt Trusts Abousheo. What Other uses and trusts were abolished by this article may be considered under subsequent sections of this act. Mere passive uses and trusts were those de- signed to be prevented. Comment on the Language of Section 71. That part of the section under consideration, which relates to cognizance of vested uses as legal rights, was originally intended to indicate the withdrawal from the courts of equity of all such uses** as were not called ex- press trusts*" or revived as powers in trust.*i Now that trusts and legal estates are justiciable in the same forum,*^ the Committee of Statutory Revision might have omitted the latter part of this section. As they have altered the language of the Revised Statutes, the present section seems to contemplate a class of legal rights not cognizable in the courts, which seems absurd. 3T43 Eliz., chap. 4; Allen v. Stevens, cuted uses; the antinomy of law and 22 Misc. Rep. 158, 161 N. Y. 123 ; equity being in full force when the Matter of Griffin, 167 id. 71, 81. Revised Statutes were enacted. 38 See remarks under § 93, The Real « i R. S. 728, § 55 ; § 76, The Real Prop. Law, infra. Prop. Law; Johnson v. Fleet, 14 39 All naked or passive trusts were Wend. 176. abolished by the Revised Statutes. *i Downing v. Marshall, 23 N. Y. at and cognizance of them consequently p. 378. was, by the Revisers, formally trans- ^ Const, of 1846, art. VI ; Const, of ferred to the courts of law as exe- 1894, art. VI. 350 Uses Vested in Possession. § 72. When right to possession creates legal ownership — Every person, who, by virtue of any grant, assignment or devise, is entitled both to the actual possession of real property, and to the receipt of the rents and profits thereof, in law or equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same con- ditions, as his beneficial interest; but this section does not divest the estate of the trustee in any trust existing on the first day of January, eighteen hundred and thirty, where the title of such trustee is not merely nominal, but is connected with some power of actual disposition or management in relation to the real property which is the subject of the trust. Formerly 1 Revised Statutes, 727, sections 47 and 48: § 47. Every person who, by virtue of any grant, assignment or devise, now is, or hereafter shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest.''^ § 48. The last preceding section shall not divest the estate of any trustees, in any existing trust, where the title of such trustees, is noc merely nominal, but is connected with some power of actual disposition or management, in relation to the lands which are the subject of the trust.** Comments on Section 72. It will be remarked that this section differs from the old Statute of Uses in that it does not require a person to stand seised to a use.*^ It acts on attempted convey- ances,** and even on those constructively prohibited by the follow- ing section of this act.*^ By the above section the legal estate is made to devolve on the real party in interest, without regard to the form of the conveyance. Thus, the scope and the intent of the old Statute of Uses were supplemented by the Revised Statutes in material particulars. But this section never operates to vest title in an intended beneficiary, if the beneficiary himself is under a disability,** or so uncertain and indefinite as to be incapable of ** Repealed, chap. 547, Laws of 1896. v. Reinheimer. 105 id. 470, 475 ; Syra- ** Repealed, chap. 547, Laws of 1896. cuse Savings Bank v. Holden, id. 415. *5 Cf. I Sand. Uses & Trusts, 85 ; *7 § 73, infra; Downing v. Marshall, Challis, ,313. 23 N. Y. 366, 378, 379; Townshend v. *6 Properly termed "attempted Frommer, 12s id. 446, 456, 457 ; Helck trusts," by a recent writer. Chapl. v. Reinheimer, 103 id. 470. Express Trusts & Pow. 395 ; Heer- *8 Beekman v. Bonsor, 23 N. Y. 298, mans V. Burt, 78 N. Y. 259, 266 ; Helck 316; Downing v. Marshall, id. 366, The Old Statute of Uses. 351 identification.^^ Charitable uses were never vested in possession by the former Statute of Uses, and are not by the present statute. Scope of Sections 72 and 73. The original of sections 72 and 73 of The Real Property Law were to some extent taken from the Revised Laws of 1813,®* which in turn embodied the old Statute of Uses (27 Hen. VIII, chap. 10).^^ The revisers' design, as has been stated before,^^ was to effectuate the supposed intention of the framers of the original Statute of Uses and actually to destroy all passive trusts in lands. With this end in view, the language of the first part of section "j:^ was intended to prescribe a conclusive presumption of law, that any use or trust for another vested that other with the legal title at a time when the legal and the equitable titles were of distinct judicial cognizance.^* Prior to the Statute of Uses all uses were of equitable cognizance only,^^ and, where there was a use, the presumption was consequently always in favor of equity. The Revised Statutes changed this rule. The Old Statute of Uses. The Statute of Uses (27 Hen. VIII, chap. 10) did not destroy active fiduciary agencies or trusts, but only those passive uses where one had a legal title and another the dominium utile and the right to the rents and profits of the estate.^® Indeed, soon after the statute it was held that there could not be a use upon a use. Consequently the second use would have failed had it not been that equity enforced the second as a trust, holding that the statute executed only the first use.'^'' Thus where the limitation was " to and to the use of A. and his heirs in trust for B. and his heirs," only the first use was executed. In this manner most passive uses or trusts were revived by the action .38s, 387. Cf. Tuck V. Knapp, 42 Misc. 56 Townshend v. Frommer, 125 N. Rep. 140. Y. at p. 456 ; Willis, Origin of Trusts, *» See the cases on charitable uses 22 ; Lewin, Trusts, 210 ; Kerly, Hist, cited under § 71; and Helck v. Rein- Eq. 134; i Prest. Est. i8q, 190; note heimer, 105 N. Y. 470. 2, p. 334, Digby, Hist. Real Prop. ; 50 I R. L. 72, § I. Strahan on Property, no, in. Cf. i ^^ Supra, pp. 197, 198. Sand. Uses & Trusts, 86; i Spence, ^^ Supra, p. 346, and Greene v. Eq. Juris. 491. Greene, 125 N. Y. at p. 511. 57 i Spence, Eq. Juris. 490; Tyr- 53 Quondam, i R. S. 727, § 47. rell's Case, Dyer, issa ; Digby, Hist. 5* Johnson v. Fleet, 14 Wend. 176, Real Prop. 334, chap. VII, § 4; Jack- 179- son V. Dunsbagh, i Johns. Gas. 91, 96 ; 55 I Sand. Uses & Trusts, 5 ; Van supra, p. 32. der Volgeh v. Yates, 9 N. Y. 219, 222. 352 Reforms. of the chancellors.®^ But the revival depended upon the form of the limitation. If the estate was limited to A. and his heirs to the use or in trust for B. and his heirs, the statute executed the estate in B. But a conveyance to and to the use of 'A.' and his heirs in trust for B. and his heirs, executed the use in A., but left the trust standing for B., who had the equitable estate in fee.®^ This induced Lord Hardwicke to say that the Statute of Uses " had no other effect than to add at most three words to a conveyance." ®* But, as Mr. Sanders and Sir Edward Sugden have pointed out, this is to overlook the fact that the real effect of the Statute of Uses was to irjtroduce a new system of conveyancing, and to tolerate future es- tates at variance with the common law.*-' Uses Vested by the Old Statute. The uses, which the Statute of Uses intended to fasten to the legal estate, were those passive trusts or uses where " terre tenant simply took the legal title," suffering the cestui que use to take the profits, and to direct conveyances of the estate ;*^ a device originally intended to subvert the rigor of the old feudal law, which forbade wills of lands in most places, and permitted very few future interests to vest in land, even by con- veyances inter vivos.^^ It is well known how the main intent of the Statute of Uses was frustrated.^ The Reforms of the Revised Statutes. By the allowance of only four express trust purposes,^ and the exclusion of all others,* the re- visers of New York judged that they might frustrate a like mis- carriage in the case of passive uses; but they did not intend to abolish all other fiduciary agencies or trusts, for they expressly ssKerly, Hist. Eq. 135; I Spence, ing of the Statute of Uses. Willis, Eq. Juris. 491 ; Fisher v. Fields, 10 Treatise on Duties of Trustees, and , Johns. 495, 506 ; Lewin, Trusts, 209 ; the Origin and History of Trusts, Strahan on Property, no, in. may also be consulted, while Spence, 59 I Prest. Est. igo ; Austen v. Tay- Equity Jurisdiction, is a comprehen- lor, I Eden, 361 ; Robinson v. Grey, 9 sive work on the origin of equitable East, I. institutions. 60 I Atk. 591. ^^ Supra, pp. 26-34. 61 Sanders, Uses & Trusts, 277 ; 84 Supra, pp. 30-34. Sugden's Introduction to Gilbert on 65 i R. S. 728, § 55 ; § 76, infra, The Uses, et supra, p. 32, Introduction. Real Prop. Law. 62 Bacon's " Reading on the Statute 66 i r. s. 729, § 56 ; id., § 58 ; The of Uses," and his Essay on the Use of Real Prop. Law, §§ 77, 79; Downing the Law, are still the most helpful v. Marshall, 23 N. Y. at p. 377. commentary on the legislative mean- Reforms. 353 permitted other trust purposes to continue as powers.®^ Thus, the Revised Statutes annihilated equitable estates as they had theretofore existed, and reduced all such to the rank of mere equitable inter- ests cognizable in chancery, but without the incidents of equitable estates, equitable seisin, equitable entails, bars, etc., as formerly the analogy between legal estates and equitable estates was almost complete.^* Extent of the Eefoims Instituted by this Section. Sections 72 and 73^^ are then a present and reformed survival of the old Statute of Uses, and are intended to vest the legal estate in a person entitled to the beneficial use, wherever no recognized trust exists,™ either expressly, under the 76th section of this act,''^ or by virtue of a power in trust.'^^ In the latter case the legal title may descend,'^* result'^* or vest in persons otherwise entitled, without regard to the trust power, which overrides the legal estate thus vesting, descend- ing or resulting.^* But it is to be remarked, with some care, that a merely passive use, which does not direct or authorize the per- formance of some active trust by the trustee, may not operate as a power in trust.^® «7i R. S. 729, § 58; § 79, The Real Prop. Law; Townshend v. Frommer, 125 N. Y. 446. ^ I Prest Abst. Tit. 147 ; 2 id. 229 ; 2 Spence, Eq. Juris. 875; Digby, Hist. Real Prop. 337; supra, pp. 26-33. ® The Real Prop. Law. ™ Cushney v. Henry, 4 Paige, 345 ; Matter of De Kay, id. 403; Johnson V. Fleet, 14 Wend. 176 ; Selden v. Ver- milya, 3 N. Y. 525 ; Rawson v. Lamp- man, 5 id. 4S6; Wright v. Douglass, 7 id. 564, 570; Ring v. McCoun, 10 id. 268; Downing v. Marshall, 23 id. 366, 379 ; Adams v. Perry, 43 id. at p. 496 ; Verdin v. Slocum, 71 id. 345, 347; Nat. Bank of Commerce v. Nat. Bank of New York, 17 Misc. Rep. 691 ; Rose V. Hatch, 125 N. Y. 427, 432; The Syracuse Savings Bank v. Hol- den, los id. 415; Greene v. Greene, 23 I2S id. S06, sii; Wendt v. Walsh, 164 N. Y. 154; Treat v. Vose, 63 App. Div. 338; Lewis v. Howe, 64 id. 572; McComb V. Title Guarantee Co., 36 Misc. Rep. 370, 372; Ullman v. Cam- eron, 92 App. Div. 91. ''I Formerly i R. S. 728, § 55. T2 § 79, The Real Prop. Law ; N. Y. Dry Dock Co. v. Stilman, 30 N. Y. 174, 194- ■^3 § 79, The Real Prop. Law. T* § 79, The Real Prop. Law ; Wright V. Douglass, 7 N. Y. 564, 576. T5 § 79, The Real Prop. Law ; The Syracuse Savings Bank v. Holden, 105 N. Y. 41S. '^^ Townshend v. Frommer, 125 N. Y. 446, 447; cf. Heermans v. Burt, 78 id. 259, 267; Campbell v. Stokes, 142 id. 23; Lewis v. Howe, 64 App. Div. 572; Murray v. Miller, 178 N. Y. 316. 354 Legal Estate of Trustees. Legal Estate of Trustees Fundi OfScio Vests under this Act. The Re- vised Statutes were so framed as to vest even trust estates lawful, in those next entitled^'' without the necessity of any conveyance, when the purposes of the trustee no longer required him to have the legal title. ^® At common law, a fee in trustees never could become a legal estate of those next entitled, except through the medium of a conveyance.'^® In a modern case in New York the rule of the common law on this point is so stated as to make it appear that the estate of a trustee before the Revised Statutes devolved on the persons beneficially entitled whenever trust purposes ceased.*" But it is apprehended that this confuses another principle: viz., that by construction, courts of equity would so limit the legal estate of trustees as to make them commensurate with the trust,*^ and when the trust purpose ceased, would compel the trustees to convey the outstanding legal title.*^ If this were not the old rule, why the necessity of the so-called "vesting acts" in England? Of course these observations apply only to those cases where the trustees took a fee, for if their estate was less in quantity the next limitation took effect, or the estate resulted when the trustee's estate came to an end by lapse of time or otherwise. Saving Trustees' Estates Existing before 1830. The latter part of this section,*^ referring to trusts existing on the ist day of January, TT§§ 82, 89, The Real Prop. Law, 3 Bro. P. C. 308, where wife had a formerly i R. S. 729, § 62; i R. S. power of revocation and appointment 730, § 67. which she exercised; see, also, 2 ■^8 Selden v. Vermilya, 3 N. Y. 525 ; Chance, Pow. 7, on same case. It is Ring V. McCoun, 10 id. 268, 271; questionable whether, in that case, Briggs V. Davis, 20 id. 15, 22; Matter trustees had a fee simple absolute, of Livingston, 34 id. 555, 567; Kip v. An outstanding term in trustees was, Hirsch, 103 id. 565, 57°; Watkins v. however, sometimes presumed to be Reynolds, 123 id. 211; Nat. Bank of satisfied, or surrendered, without Commerce v. Nat. Bank of New York, proof of a conveyance. i Jones' 17 Misc. Rep. 691 ; Rose v. Hatch, 125 Attys.' Pocket Book, 4, and cases N. Y. 427, 431, 432; Helck v. Rein- there cited. heimer, 105 id. 470, 475 ; Miller v. so Bennett v. Garlock, 79 N. Y. 302, Wright, 109 id. 194, 200; Townshend 324. v. Frommer, 125 id. at p. 461 ; O'Don- si Lewin, Trusts, 213, 221, and cases oghue V. Boies, 159 id. 87,, 97; Bu- cited. chanan v. Little, 6 App. Div. 527 ; 82 g Cruise, Dig. 203 ; Lewin, Trusts, Lewis V. Howe, 64 id. 572. 684, 686; cf. Briggs v. Davis, 20 N. Y. TO I Prest. Est. 144; sed cf. 1 Sugd. at p. 22. Pow. 230, citing Rich. v. Beaumont, ^ § 72, supra, p. 350. Uses and Trusts. 355 1830, was intended to save all anterior trust limitations and estates which were not purely passive vises.^* If they were those active trusts now classed as powers in trust, the legal title of the trustees was thus saved; but if they were mere passive uses or trusts the legal title vested in the beneficiaries under the general rule.*^ Covenants to Stand Seised — Declarations of Uses. A covenant to stand seised has been said to be still operative as a conveyance under the existing statute executing uses in possession.*^ This form of conveyance was recognized as a legal conveyance after the Statute of Uses (27 Hen. VIII), as it was theretofore recognized in equity.*' How far the covenant to stand seised must be contained in a deed delivered, in order to have the statute operate, is a question for further consideration.** At common law it could take effect with- out delivery.*® Blood and an intended marriage are alone the con- sideration which support a covenant to stand seised,®** and a deed to a stranger cannot be supported as a covenant to stand seised.®^ A deed to declare uses upon a separate conveyance by fine was at first operative after the Revised Statutes,®^ and a conveyance to declare uses still may be valid when the conveyance is contained in a separate instrument, notwithstanding conveyances by fines and recoveries are now abolished.®* 8* Cushney v. Henry, 4 Paige, 345 ; Barb. 463 ; affd., 6 N. Y. 422 ; Corwin Anderson v. Mather, 44 N. Y. 249, v. Corwin, 6 N. Y. 342, 9 Barb. 219; 258. Jaclcson v. Cadwell, i Cow. 622; cf. *' Matter of De Kay, 4 Paige, 403 ; Jackson ex dem., etc. v. Dunsbagh, Frazer v. Western, i Barb. Ch. 220, i Jolins. Cas. 91 ; Jackson v. Sebring, 238; affd., 3 Den. 610. 16 Johns. 515. **Eysamanv. Eysaman, 24Hun, 430; ®i Schott v. Burton, 13 Barb. 173; cf. Nat. Bank of Commerce v. Nat. The Bank of the United States v. Bank of New York, 17 Misc. Rep. Housman, 6 Pai. 526; Roberts v. Rob- 691; Hayes v. Kershaw, i Sandf. Ch. erts, 22 Wend. 140; Goodell v. Pierce, 258; Lewis V. Howe, 64 App. Div. 572. 2 Hill, 649; 2 Washb. R. P. 614 (ist 87 Smith, Compend. Real & Pers. ed.) ; Fowler, Hist. R. P. m N. Y. 88. Prop. 573. Between others than rela- ®®WilIard, Real Est. & Conv. 444; tions it was operative as a bargain and Eysaman v. Eysaman, 24 Hun, at p. sale if founded on a valuable consid- 434; 2 R. S. 135, § 7; amd., chap, eration. Id. at p. 575. 322, Laws of i860; 2 R. S. 343, § 24. *8 Infra, § 2cg, The Real Prop. Law. 93 2 R. S. 343, § 24 ; Eysaman v. *® 2 Bla. Com. 307, note. Eysaman, 24 Hun, at p. 434 ; Bank of 9® Rogers v. Eagle Fire Ins. Co., 9 Commerce v. Bank of New York, 17 Wend. 611; 3 Prest. Abstracts of Misc. Rep. 691. Title, 13; Lynch v. Livingston, 8 356 Trustee of Passive Trust. § 73. Trustee of passive trust not to take. — Every disposition of real property, whether by deed or by devise, shall be made directly to the person in whom the right to the posses- sion and profits is intended to be vested, and not to another to the use of, or in trust for, such person; and if made to any person to the use of, or in trust for another, no estate or interest, legal or equitable, vests in the trustee. But neither this section nor the preceding sections of this article shall extend to the trusts arising, or resulting by implication of law, nor prevent or affect the creation of such express trusts as are authorized and defined in this chapter. Formerly i Revised Statutes, 728, sections 49, 50: § 49. Every disposition of lands, whether by deed or devise hereafter made, shall be directly to the person in whom the right to the possession and profits, shall be intended to be invested, and not to any other, to the use of, or in trust for, such person ; and if made to one or more persons, to the use of, ct in trust for, another, no estate or interest, legal or equitable, shall vest in the trustee.^* § so. The preceding sections in this Article shall not extend to trusts aris- ing, or resulting by implication of law, nor be construed to prevent or affect the creation of such express trusts, as are hereinafter authorized and defined.85 Construction of Section 73. This section is construed as complemen- tary of the foregoing section ;®® and while it declares expressly that under the circumstances indicated in the section no estate shall vest in the trustee, yet the courts do not construe such a convey- ance as void, but hold that it is operative to carry the title to the intended beneficiary.^^ In this respect the Revised Statutes differed from the old Statute of Uses, which required a person to stand seised to a use before the statute would transfer the seisin.** So that now, when a conveyance or devise limits an estate on trusts not recognized as one of the four authorized trusts,** or not per- 8* Repealed, chap. 547, Laws of of New York, 17 Misc. Rep. 691 ; i8g6. Syracuse Savings Bank v. Holden, ^^ Repealed, chap. 547, Laws of 105 N. Y. 415 ; Siedelbach v. Knaggs, 1896. 27 Misc. Rep. no; afTd., 40 App. Div. 96 The Real Prop. Law, § 72. 169 ; Wendt v. Walsh, 164 N. Y. 154. 97 Helck V. Reinheimer, 105 N. Y. 98 j Sanders, Uses & Trusts, 85 ; at p. 475. Cf. Justice Bronson, Root Challis, 313. V. Stuyvesant, 18 Wend, at p. 278 ; 99 Under § 76, The Real Prop. Law. Nat. Bank of Commerce v. Nat. Bank Classification of Trusts. 357 mitted to take effect as powers in trust,* such conveyance or devise is not necessarily ineffective in toto, but is operative to carry the estate to the persons really intended by the settlor to be benefited as usufructuaries of the grant or devise.^ But when the grantor is the sole beneficiary of a use or trust not within the four express trust purposes, no title vests in the grantee, but the title is left in the grantor.* Saving Clause. The saving clause attached to this section excepts all trusts arising by implication of law,* and all express trusts saved by the statute,' from the operation of the other portion of the section. Classification of Trusts before the Eevised Statutes. Before consider- ing what are " implied " trusts under this section, let us briefly recall the various classifications of trusts, after the Statute of Uses, when the former trusts passive disappeared as trusts and passed into the rank of legal estates by operation of that statute. Anterior to the Revised Statutes, trusts were variously classified, according to the nature of the duty imposed on the trustee, into naked, simple or passive,* and active or special.'^ When classified according to the manner of their creation, trusts were (i) by act of the parties.* (2) by operation of law.® Special trusts by act of the parties were (i) express" or (2) implied.** Trusts by operation of law were classified again as (a) presumptive,*^ (b) resulting** and (c) constructive.** The classification was not always strictly ob- served and the terms sometimes clash in practice, contrary terms * The Real Prop. Law, §§ 77, 79; * Formerly i R. S. 727, § 50. Townshend v. Frommer, 125 N. Y. 5 The Real Prop. Law, §§ 76, 79. 446; McComb V. Title Guarantee & ^Lewin, Trusts, 18. Trust Co., 36 Misc. Rep. 370; Matter TLewin, Trusts, 18. of Stewart, 88 App. Div. 23, 30. 8 Lewin, Trusts, 21 ; i Spence, Eq. 2 Downing v. Marshall, 23 N. Y. Juris. 495. 366, 379 ; Helck v. Reinheimer, 105 ® Lewin, Trusts, 21 ; i Spence, Eq. id. at p. 475; Root v. Stuyvesant, 18 Juris. 495. Wend, at p. 278 ; Wendt v. Walsh, 49 *" Lewin, Trusts, 108 ; i Spence, Eq. App. Div. 184 ; modified, 164 N. Y. Juris. 495 ; Cuyler v. Bradt, 2 Cai. Cas. 154; Western Union Tel. Co. v. Shep- 326. hard, 169 id. 170, 182 ; 'Matter of ** Lewin, Trusts, 108 ; i Spence, Eq. Gawne, 82 App. Div. 374; Ullman v. Juris. 509. Cameron, 92 id. 91. *2 Lewin, Trusts, 201. * Heermans v. Burt, 78 N. Y. 259, i^ j Spence, Eq. Juris. 510. 266. ** I Spence, Eq. Juris. 510. 358 Implied and Secret Trusts. being used as equivalents.^^ Other classifications, such as executed^^ and executory,*'' we need not notice in this connection. Implied Trusts. Implied trusts are strictly those trusts which are to be inferred from the language of a particular limitation. They may, therefore, be termed with more accuracy inferential trusts special. But the use of the term is not now confined to this class of trusts, but sometimes denotes all resulting trusts.** As no par- ticular language is necessary to create a trust,** it seemed appropriate 10 exclude from the operation of this section of the statute those trusts which, though not express, the courts might imply from the context of instruments. Implied trusts are not, however, favored.^" Secret Trusts. To some extent certain secret trusts, which were not strictly trusts arising ex maleficio, may be said to be saved by this section rather than by that following in this act. For section 74 refers only to two classes of trusts ex maleHcio. Thus, where one is induced to give a legacy or to change his will by a promise, express or implied, of the legatee to devote it to a lawful purpose other than that of the legatee, equity will enforce the promise or undertaking as an implied or secret trust.^* 15 Foote V. Bryant, 47 N. Y. 544; v. Hegeman, 72 id. 376, 384; Dona- I Spence, Eq. Juris. 509, note h. van v. Van De Mark, 78 id. 244; i^Lewin, Trusts, iii. Morse v. Morse, 85 id. 53; Ward v. 1'' 2 Spence, Eq. Juris. 128. Ward, 105 id. 68 ; Toronto Trust Co. 18 Johnson v. Fleet, 14 Wend. 176 ; v. C, B. & Q. R. R. Co., 123 id. 37. Foote V. Bryant, 47 N. Y. S44; cf. 2" Foose v. Whitmore, 82 N. Y. 405 ; Henderson v. Henderson, 113 id. i, Henderson v. Henderson, 113 id. i, 11. 12, where " imphed " is used strictly. ^* Trustees of Amherst College v. And see Western Union Tel. Co. v. Ritch, 151 N. Y. 282; O'Hara v. Dud- Shephard, 169 N. Y. 170, 182. ley, 95 id. 403; Williams v. Fitch, 18 19 Leggett V. Perkins, 2 N. Y. 297; id. 546; Hirsh v. Auer, 146 id. 13, 19; Wright V. Douglass, 7 id. 564; Dill- Ahrens v. Jones, 169 id. s.^S, 560; Mc- aye v. Greenough, 45 id. 438, 445 ; Clellan v. Grant, 83 App. Div. 599. Vernon v. Vernon, S3 id. 351 ; Heer- Cf. Hone v. Van Schaick, 7 Paige, mans v. Robertson, 64 id. 332; Moore 221. Effect of Payment of Consideration. 359 § 74. Grant to one where consideration paid by another. — A grant of real property for a valuable consideration, to one person, the consideration being paid by another, is presumed fraudulent as against the creditors, at that time, of the per- son paying the consideration, and, unless a fraudulent intent is disproved, a trust results in favor of such creditors, to an extent necessary to satisfy their just demands ; but the title vests in the grantee, and no use or trust results from the payment to the person paying the consideration, or in his favor, unless the grantee either, 1. Takes the same as an absolute conveyance, in his own name, without the consent or knowledge of the person pay- ing the consideration, or, 2. In violation of some trust, purchases the property so conveyed with money or property belonging to another. Formerly i Revised Statutes, 728, sections 51, 52, S3 : § 51. Where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made ; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.22 § 52. Every such conveyance shall be presumed fraudulent, as against the creditors, at that time, of the person paying the consideration ; and where a fraudulent intent is not disproved, a trust shall result in favor of such creditors, to the extent that may be necessary to satisfy their just demands.^s § 53. The provisions of the preceding fifty-first section shall not extend to cases, where the alienee named in the conveyance, shall have taken the same as an absolute conveyance, in his own name, without the consent or knowl- edge of the person paying the consideration, or where such alienee, in viola- tion of some trust, shall have purchased the lands so conveyed, with monies belonging to another person.^* Comment on Section'74. The reader will observe that, notwithstand- ing the changes made by this section in the language of the Re- vised Statutes,^'' the Statutory Revision Commission have reported to the Legislature that the law remains unchanged by this section.*^ Consideration. At common law a conveyance, even by way of feoffment, if made without consideration, raised a use in favor of 22 Repealed, chap. 547, Laws of 24 Repealed, chap. 547, Laws of 1896. 1896. 23 Repealed, chap. 547, Laws of 25 Supra, i R. S. 728, §§ 51, 52, 53. 1896. 26 Infra, Appendix I, note to § 74, The Real Prop. Law. 360 Effect of Payment of Consideration. feoffor after the Statute Quia Emptores,^'^ although it is said that a consideration was not regarded as necessary to support a common- law conveyance^* by way of feoffment or fine.^ But, since the Statute of Uses, those conveyances which originated in equity, bargain and sale and covenant to stand seised, have required a con- sideration to support them.^* And so a lease and release, which was a compound conveyance, made effective partly by the common law and partly by the Statute of Uses, required a consideration.^' But the consideration need not always be expressed in a deed.^^ Consideration Given by a Third Person. So, at common law, the prin- ciples governing uses in equity dictated that, where the considera- tion was paid by a third person, the grantee should prima facie stand seised to the use of such third person.^* The old Statute of Uses then executed the use in the third person.** The revisers believed that the preservation of these rules of law might defeat the effort to abolish passive uses and trusts, and that there was no real reason why a person paying the consideration should ever take the legal title in the name of a third person,^^ unless a fraud was contemplated. Changes Made by the Revised Statutes. The Revised Statutes con- sequently abolished resulting trusts in favor of persons furnishing the actual consideration for a deed taken by their direction in the name of a third person ; and such statutes also discharged the third person from any trust by reason thereof,** excepting in those cases 27 Serj. Carthew's " Reading on the ^i Carthew, supra, 371. Law of Uses" (i Collect. Jurid. by '* Cunningham v. Freeborn, 11 Hargrave, 370), citing Dyer, 146b; Wend. 240, 248; Wood v. Chapin, 13 Garfield v. Hatmaker, 15 N. Y. 475, N. Y. 509, 517; cf. Morris v. Ward, 477; Van der Volgen v. Yates, 9 id. 36 id. 587, 598 ; .Loeschigk v. Hatfield, 219, 222. 51 id. 660. 28 Cornish, Uses, 63 ; Gilbert, Uses, 33 Poote v. Colvin, 3 Johns. 216 ; 90, 109 (ed. 1811). Jackson ex dem. v. Mills, 13 id. 463; 29 Id., supra. Jackson ex dem. v. Morse, 16 id. 197 ; 30 Carthew, Reading on Law of Garfield v. Hatmaker, 15 N. Y. 475, Uses, 371; Cornish, 6^; Smith, Com- 477; McCartney v. Bostwick, 32 id. pend. Real & Pers. Prop. 667 ; Schott. 53 ; Willard, Real Est. & Conv. 234. V. Burton, 13 Barb. 173 ; Corwin v. 34 ggg Revisers' note^ I R. S. 728, Corwin, 6 N. Y. 342; Wood v. Chapin, § 51, Appendix II, infra. 13 id. S09, S17; Van der Volgen v. ^^lA., supra. Yates, 9 N. Y. 219, 222 ; supra, p. 29 38 Jeremiah v. Pitcher, 20 Misc. Rep. (Introduction). 513; Bodine v. Edwards, 10 Paige, Effect of Payment of Consideration. 361 where the person paying the consideration then had creditors.'"'^ In such cases a trust resulted to the extent of the just demands of existing creditors,^^ who might proceed to enforce the trust after exhausting their legal remedies,^* and the more diligent creditor has the preference over others.*"* But it seems that where a title is taken in the name of a third person to defeat dower, this section may not apply.*^ Partners an Exception. A partner, taking a deed in his own name for convenience, is not within the general rule abolishing resulting trusts, even though the consideration of the conveyance was furnished by the other partners.*^ Parents and Children. Nor does the statute abolishing resulting trusts apply to a case where parents furnished the consideration of a conveyance to a third person, it being understood it was done for the benefit of an infant child,*^ or some other member of the family;** and such was the construction of the old Statute of Uses.*'' A trust was not ordinarily implied in favor of parents furnishing the consideration of a conveyance to a child, if the transaction might be deemed an " advancement." *'^ Thus, where the father takes a title in the name of the son, it will be deemed an " advance- 504 ; Norton v. Stone, 8 id. 222 ; Gar- ^o Mandeville v. Campbell, 45 App. field V. Hatmaker, 15 N. Y. 475; Div. 512. Everett v. Everett, 48 id. 218 ; Dunlap *l Nichols v. Park, 38 Misc. Rep. V. Hawkins, S9 id. 342; Niver v. 176. Sed cf. infra, under Article on Crane, 98 id. 40; cf. Rogers v. N. Y. Dower. & Texas Land Co., 134 id. 197; ^apairchild v. Fairchild, 64 N. Y. Robertson v. Sayre, id. 97. 471 ; cf. Levy v. Brush, 45 id. 589 : 37 In case of fraudulent conveyances Chester v. Dickinson, 54 id. i ; Trap- under section 226, infra, subsequent hagen v. Burt, 67 id. 30; Greenwood as well as existing creditors can im- v. Marvin, in id. 423, on questions peach the conveyance. Mead v. Gregg, of partnerships in real estates. 12 Barb. 653 ; Read v. Livingston, 3 43 Siemon v. Schurck, 29 N. Y. 598 ; Johns. Ch. 481. Foote v. Bryant, 47 id. 544; et vide 38 Wood v. Robinson, 22 N. Y. 564, infra. The Real Prop. Law, § 295, and S66; McCartney v. Bostwick, 32 id. cases there cited; Proseus v. Mcln- S3 ; Underwood v. Sutcliffe, 77 id. 58 ; tyre, S Barb. 524 ; cf. Lee v. Timken, cf. Dunlap v. Hawkins, 59 id. 342; 10 App. Div. 213. Niver v. Crane, 98 id. 40; The Real ^4 Siemon v. Schurck, id., supra. Prop. Law, §§ 226, 227, infra. *5 Cook y Fountain, 3 Swan, 592; 39 Ocean Bank v. Olcott, 46 N. Y. Kerly, Hist. Eq. 194, 195. 12 ; Underwood v. Sutcliffe, 77 id. 58, 48 See under the Real Prop. Law, 63; note to 14 Abb. N. C. at p. 40. §§ 295, 296. 362 Effect of Payment of Consideration. ment," rather than a resulting trust for the father,*'' although in several recent cases this principle is not noticed in the opinion.*^ Involuntary Trusts an Exception. Where a grantee takes the convey- ance in his own name without the consent or knowledge of the person furnishing the consideration, a resulting trust still exists in favor of the person wronged; the case being excepted out of the abolition of resulting trusts.*® But the trust so results only to the extent of the consideration actually furnished.®* Separate Instrument. This section abolishing resulting trusts has no application where the trust is declared by a separate instrument from the grant.®-' Trusts Arising Ex Maleficio. The condemnation of resulting trusts does not apply to trusts arising ex maleiicio,^^ or through the frauds of persons who occupy confidential relations to those furnishing the real consideration.®^ And although trusts concerning lands can now be created and declared only by some deed or writing, or else by a last will,®* yet resulting trusts and those arising ex male- ficio may be proven by evidence not in writing.®® 47 Partridge v. Haven, lo Paige, 6i8; Story, Eq. Juris., § 1202. *8 Smith V. Balcom, 24 App. Div. 437- C"/. Dyer v. Dyer, 2 Cox, 92 ; Kin- caid V. Kincaid, 85 Hun, 141 ; affd., 157 N. Y. 715. i^ Supra, § 74; I R. S. 728, § 53; Swinburne v. Swinburne, 28 N. Y. 568; Lounsbury v. Purdy, 18 id. 515; Reitz V. Reitz, 80 id. 538; Helms v. Helms, 64 id. 642; Roulston v. Roul- ston, id. 652; Brown v. Cherry, 57 id. 6^=;; note to 14 Abb. N. C. 18; Schier- loh V. Schierloh, 148 N. Y. 103; Schultze V. Mayor, 103 id. 311; Church of St. Stanislaus v. Algemeine Verein, 31 App. Div. 133. 50 Schierloh v. Schierloh, 148 N. Y. 103. Cf. Willard, Real Est. & Conv. at p. 234, and authorities there cited; Bryant v. Allen, 54 App. Div. 500. 81 Woerz v. Rademacher, 120 N. Y. 62; Nat. Bank of Commerce v. Nat. Bank of New York, 17 Misc. Rep. 691 ; Associate Alumni v. General Seminary, 26 App. Div. 144, 163 N. Y. 417; Wakeman v. Somerindyke, 73 App. Div. 601. B2 I R. S. 728, § S3 ; Ryan v Dox, 34 N. Y. 307 ; Day v. Roth, 18 id. 448 ; Carr v. Carr, 52 id. 251, 261 ; Foote v. Foote, 58 Barb. 258; Carey v. GrifBn, 36 Misc. Rep. 469; Ahrens v. Jones, 169 N. Y. SSS, S6o, 561. ®s Robbins v. Robbins, 89 N. Y. 251 ; Wood V. Rabe, 96 id. 414, 425 ; Gold- smith V. Goldsmith, 145 id. 313 ; Sand- ford V. Norris, 4 Abb. Ct. App. Dec. 144; cf. Wheeler v. Reynolds, 66 N. Y. 227; Bullenkamp v. Bullenkamp, 34 App. Div. 193 ; McClellan v. Grant, 83 App. Div. 599; Leary v. Corvin, 92 id. 544. ®*§ 207, The Real Prop. Law; Hutchins v. Van Vechten, 140 N. Y. 115; Sturtevant v. Sturtevant, 20 id. 39; Dillaye v. Greenough, 45 id. 438, 445. Cf. Duke of Cumberland v. Graves, 9 Barb. 595, 7 N. Y. 305. ®® Lounsbury v. Purdy, 16 Barb. 376; affd., 18 N. Y. 51s; Swinburne V. Swinburne, 28 id. 568; Foote v. Section not an Instrument of Fraud. 363 This Section not an Instrument of Fraud. This section of the statute has no application to cases where equities arise out of the agree- ment of the parties; the statute cannot be used as an instrument of fraud f* but this does not mean the mere breach of an oral agreement.^'' Bryant, 47 id. 544, 547; Wheeler v. Reynolds, 66 id. 227; cf. Traphagen V. Burt, 67 id. 30, 33. 66 Wood V. Rabe, 96 N. Y. 414, 425 ; Smith V. Balcom, 24 App. Div. 437, and cases there cited; Jeremiah v. Pitcher, 26 id. 402, and cases there cited; Gremly v. Shelmidine, 83 id. 559; Dodge v. Wellman, i Abb. Ct. App. Dec. 512; Canada v. Totten, 157 N. Y. 281, 287; Ahrens v. Jones, 40 App. Div. 447 ; revd., 169 N. Y. 555 ; Hawkins v. Dunmore, 24 Misc. Rep. 623; Wood V. Mulock, 48 Super. Ct. 70, 80; Gage V. Gage, 13 App. Div. 565 ; and see cases cited under § 234, infra. 6T Allen V. Arkenbtirgh, 2 App. Div. 452, 454. Cf. Quinn v. Quinn, 69 App. Div. 598. 364 Bona Fide Purchaser. § 75. Bona fide purchasers protected. — An implied or resulting trust shall not be alleged or established, to defeat or prejudice the title of a purchaser for a valuable consideration without notice of the trust. Formerly i Revised Statutes, 728, section 54: § 54. No implied or resulting trust shall be alleged or established, to defeat or prejudice the title of a purchaser, for a valuable consideration, without notice of such trust.^* Comment on this Section. This section states a necessary exception to the resulting trust in favor of creditors, saved by the preceding section.^^ No resulting or secret trust is now tolerated so as to defeat the title of a bona fide purchaser for value, nor should it be in a State where the recording acts are established.^" Who may come within the exception denoted is, however, another ques- tion. A person put upon inquiry by any circumstance, but failing to inquire, cannot be regarded as a bona fide purchaser under this section.^^ Nor may one who takes for an antecedent debt.®^ The trust is in favor of existing creditors and may be enforced in equity only.^^ It is said that where the consideration is paid in order to satisfy a moral obligation, which the party paying it owes to grantee, no trust in favor of creditors exists.^* But this must depend on the superior equity of the grantee, it would seem, and the sufficiency of the consideration.^' No resulting trust exists in favor of grantor because a part of the consideration fails, if the intention of grantor was to part with the entire estate.*® ^8 Repealed, chap. 547, Laws of *2 Wood v. Robinson, 22 N. Y. 364. 1896. 567. S9 Siemon v. Schurck, 29 N. Y. 598, *3 Brewster v. Power, 10 Pai. 562; 613; Garfield v. Hatmaker, 15 id. 474; McCartney v. Bostwick, 31 Barb. 390; Jackson v. Forrest, 2 Barb. Ch. 576; revd. on another point, 32 N. Y. 53; Guthrie v. Gardner, 19 Wend. 414; Garfield v. Hatmaker, 15 N. Y. 475. Brewster v. Power, 10 Pai. 562. 6* Wait v. Day, 4 Den. 439; Reid '^ Fide § 84, infra. The Real Prop. v. Fitch, 11 Barb. 339; sed cf. Gar- Law, field V. Hatmaker, 15 N. Y. p. 484. 61 Baker v. Bliss, 39 N. Y. 70; Ten 66 yUe infra, §§ 227, 228, The Real Eyck v. Witbeck, 29 Abb. N. C. 314, Prop. Law. and note. 66 Vander Volgen v. Yates, g N. Y. 219, 224. The Four Express Trusts. 365 § 76. Purposes for which express trusts may be created. — An express trust may be created for one or more of the follow- ing purposes : 1 . To sell real property for the benefit of creditors ; 2. To sell, mortgage or lease real property for the benefit of annuitants or other legatees, or for the purpose of satisfy- ing any charge thereon ; 3. To receive rents and profits of real property, and apply them to the use of any person, during the life of that person, or for any shorter term, subject to the provisions of law relating thereto; 4. To receive the rents and profits of real property, and to accumulate the same for the purposes, and within the limits, prescribed by law. Formerly I Revised Statutes, 728, section 55 : § 55. Express trusts may be created, for any or either of the following purposes : 1. To sell lands for the benefit of creditors: 2. To sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon : 3. To receive the rents and profits of lands, and apply them to the educa- tion and support, or either, of any person, during the life of such person, or for any shorter term, subject to the rules prescribed in the first Article of this Title : 4. To receive the rents and profits of lands, and to accumulate the same, for the purposes and within the limits prescribed in the first Article of this Title.67 The third express trust purpose, originally stated in the Revised Statutes, was amended by chapter 320, Laws of 1830,®* so as to read as follows : To receive the rents and profits of lands, and apply them to the use of any per- son during the life of such person, or for any shorter term, subject to the rules prescribed in the first article of this title. As thus amended, the third trust purpose stood until i Revised Statutes, 728, section SS. was superseded by section y6 {supra) of The Real Property Law. Origin of Trusts in Anglo-American Jurisprudence. The precise origin of trusts originally cognizable in the courts of equity in England, and in the states derived from her empire, or adopting her laws, is not fully determined. One school of jurists assert that uses ^■^ Repealed, chap. 547, Laws of be expressly repealed by chap. 547, 1896. Laws of 1896, but it was intended so ^8 This section of this act (Chap, to be, and the repeal of i R. S. 728, 320, Laws of 1830) does not appear to § 55, repealed the amendment. 366 The Four Express Trusts. were introduced by the clergy, who were well acquainted with the dual ownership of the Roman law, " quiritarian " and "in bonis" and with dominium, and usufruct, and Mei-commissa, in order to avoid the restrictions on gifts in mortmain or to ecclesiastical bodies.^^ Others see in the English law of uses and trusts a Teutonic origin, and assert that it developed out of the more ancient law relating to a " salman," or agent, such as an executor who was salman to distribute the estateJ** The fkst view is adopted by those historians who argue that the technical English word " use " is derived from the Latin " opus," and not from the Latin " usus." '^^ But the practicing lawyer is little concerned with the precise origin of the English law of trusts. We are content to know that at the end of the reign of Henry V (A. D. 1430), the Lord Chancellor's jurisdiction over uses at the suit of the beneficiary, or cestui que use, was a fixed fact.'^^ For, as Justice Story states, not one-half of the doctrines of the common law go back of the reign of Queen Eliza- beth.''^* The law of trusts, indeed, was not on a good footing in England until Lord Nottingham's chancellorship,'^* which began only after New York had become a province of England. Thus the modern English law of trusts or jus honorarium, as it is some- times called,'^^ does not precede the establishment of a Court of Chancery in New York.''^ Lord Eldon, who is said to have crowned the completed edifice of English equity, was a contemporary of Chancellor Kent. In view of these facts it is not surprising that the revisers of the New York statutes subjected the former law of trusts to radical changes. Trusts under the Revised Statutes. The Article on Uses and Trusts in the Revised Statutes recognized the historic jurisdiction of the chancellor over trusts and equitable estates. It had distinct refer- 89 Willis, Estate of Trustees, chap. Ti 2 Pollock & Maitland, Hist. Eng. I ; Kerly, Hist, of Eq. 78 ; 2 Black. Law, 226 ; 8 Harv. Law Rev. 127. Comm. 271 ; Digby, Hist. Real Prop. ^2 j l^w Quar. Rev. 162 ; i Spence. 271 ; Viner's Abr., Uses ; I Spence, Eq. Juris. 343. Eq. Juris. 446 ; Tomlin's Lyttleton, ts § 5^5^ gq juris. S2I ; Markby, Elements of Law, 158, ^4 Lord Mansfield, in Burgess v. 159. Cf. Scrutton Rom. Law and Law Wheate, i Eden, 177, 223. of England, 156, 157. ''^ From its similarity to the origin '''' Mr. Justice Holmes, 1 Law Quar. and development of Roman equity. Rev. 162. ''8 Hist, of Law of Real Prop, in New York, chap. 7. The Four Express Trusts. 367 ence to the dual nature of property according to Anglo-American jurisprudence. In that law trusts were the creatures of equity, and to be enforced only in a court of equity.^^ When the Court of Chancery ceased to exist as a separate tribunal in New York, pursuant to the Constitution of 1846''* (its place being taken by the Supreme Court as a court of general jurisdiction in both law and equity™), the powers and jurisdiction of the Court of Chancery were made the measure of the equitable powers of the Supreme Court.®* Notwithstanding an effort to obliterate the distinction between actions at law and suits in equity,®^ the historic jurisdiction of the Supreme Court over trusts is still referred to its equitable powers, with the effect of preserving, to some extent, such distinction between legal and equitable interests and estates.*^ But this distinction is not now to be emphasized unduly, for both trusts and legal estates are largely the creature of the statute,*^ and in- dependent of their common-law origin. Many of the former doc- trines of courts of equity have been swept away, and the law of express trusts in lands is henceforth primarily referable to this article of the statute now under consideration.** Express Trusts. Prior to the Revised Statutes express trusts were those trusts which had not to be implied, because clearly ex- pressed.*® The Revised Statutes placed another meaning on the term and they are now the trusts referred to in the 76th section of this act.** Having reference to the classification of trusts first contemplated by the Revised Statutes, the reader will find that in New York trusts in lands are now of two general orders or classes: express trusts*'' and powers in trust.** Trusts at the time of the enactment of the Revised Statutes were those fiduciary " I R. S. 729, § 60. id. 362, 370 ; Town of Mentz v. Cook, '* Art. VI, Const, of 1846. io8 id. 504 ; Corscadden v. Haswell, 79 Art. VI, Const, of 1846; chap. 88 App. Div. 158; § 80, The Real 280, Laws of 1847. Prop. Law. *" § 217, Code Civ. Proc. ; Onder- 83 chap, i, part 2, R. S., now The donk V. Mott, 34 Barb. 106 ; Matter of Real Prop. Law. Steinway, 159 N. Y. 250, 258. 84 Art. 3, The Real Prop. Law. *i § 62, Code of Proc. of 1849; § 69 86 Cuyler v. Bradt, 2 Cai. Cas. 326. of old Code ; § 3339, Code Civ. Proc. 86 Matter of Chase, 40 Misc. Rep. *2 McCartney v. Bostwick, 32 N. Y. 616. S3 ; Gould v. Cayuga County Bank, 86 87 Siipra, § 76 ; i R. S. 728, I 55. id. 75, 83 ; Peters v. Delaplaine, 49 88 j„fra, § 79 ; i R. S. 729, § 58. 368 The Four Express Trusts'. relations distinctly cognizable only in chancery. The revisers be- lieved that the four purposes, enumerated above in the text of this section, embraced all the instances where it was either desirable or essential that the legal title of lands should pass to the trustee.^* But by thus limiting the instances where the trustee took the legal title to four purposes, the Legislature did not intend to take away from owners of property the right to impress upon their estates other trusts, but such other trust purposes were to be valid only as powers.®** Now, as we shall see below,^^ the main distinction between these express trusts and powers in trust is that only \vhere there is an express trust does the trustee take the legal title. Where there is a power in trust the title does not pass to the trustee of the power, but the title to the lands to which the trust relates remains in or descends to the person otherwise entitled, subject tc the execution of the power,®^ and the rents, issues and profits go to the heirs or devisees until the execution of the power.*^ What Express Trusts now are. An express trust in lands remains, in most respects, that which an active use or trust was before the Statute of Uses. The trustee takes the legal title,^ but the bene- ficiary is entitled to the fruits or net profits of the estate. The old nature of the estate or interest of the beneficiary was, how- ever, modified by the Revised Statutes in respects which will be considered below.®^ Yet it was not essentially modified, for it was said anciently that he who hath a use or trust, hath neither jus in re nor jiis ad rem, but only a confidence and trust for which he hath no remedy at the common law.^^ Active uses or trusts, it will be 83 Reviser's Note to the article on 9i Under § 79, infra, The Real Prop. Uses and Trusts ; Heermans v. Law. Robertson, 64 N. Y. 332 ; supra, pp. 92 j r, g. 729, § 59 ; et infra, § 79, 346, 352. The Real Prop. Law; Booth v. Bap- 90 Farmers'. Loan & Trust Co. v. tist Church, 126 N. Y. 215, 239. Carroll, S Barb. 613, 652 ; Selden v. ^3 Matter of Spears, 89 Hun, 49 ; Vermilya, 3 N. Y. 525, 536 ; Belmont Lent v. Howard, 89 N. Y. 169. V. O'Brien, 12 id. 394, 403 ; Down- 84 vide supra, § 34 ; under infra, ing V. Marshall, 23 id. 366, 377 ; Gil- § 80, The Real Prop. Law ; cf. Matter man v. Reddington, 24 id. 9, 15 ; of Straut, 126 N. Y. 201, as to per- Delaney v. McCormack, 88 id. 174, sonal property. 181 ; Holly V. Hirsch, 135 id. 590, 594; 95 i r. s. 729, § 60; infra, § 80, The Heermans v. Robertson, 64 id. 332; Real Prop. Law. Henderson v. Henderson, 113 id. i. 96 Mr. Butler's note, 249; Co. Litt. 290b; Gilbert, Uses & Trusts, i. The Four Express Trusts. 369 remembered, were not affected at all by the Statute of Uses (27 Hen. VIII), but continued as before,®'' while even some passive uses were ultimately continued as trusts by limiting a use upon a use and thus evading the statute.®^ The Revised Statutes contemplated not the abrogation of the old law of trusts, but a reform which should effectually destroy passive uses, and circumscribe the ex- press trust purposes to four active trusts.®* Thus, it must be ap- parent that, historically, an express trust under the present act is what an active use or trust was before the Statute of Uses (27 Hen. VIII). Trustees' Estate. The quantity of the estate of trustees of the ex- press trusts mentioned in this section is not so clearly decided as we should expect, after seventy years from the time the statute took effect. If it was intended that the trustees should in each case take a fee simple, the intention has miscarried. We have else- where intimated in these pages, that under the first and second subdivisions of this section the trustees take a fee simple absolute for purposes of alienation, and under the third, a base fee and not an estate pur autre vie} But the last class is not clear. Definition of a Trust. In a late case the Court of Appeals refer to the following as an accurate definition of a vaHd trust:* " (i) A sufficient expression of an intention to create a trust; (2) a bene- ficiary who is ascertained or capable of being ascertained; that the appointment or non-appointment of a trustee of the legal estate is not material; that if the trust or beneficial purpose be well declared, and if the beneficiary is a definite person or corporation capable of taking, the law itself will fasten the trust upon him who has the legal estate, whether the grantor, testator, heir or next of kin as the case may be. * * *" The definition embraces not only express trusts, but those powers in trust which are imperative.^ The formal distinction between trusts and powers in trust has been already noticed. ^'^ Supra, pp. 32, 351. 2 Holland v. Alcock, io8 N. Y. at 98 Supra, pp. 32, 351 ; Downing v. p. 330. Marshall, 23 N. Y. at p. 378. ^ The decisions touching the requi- 99 Supra, pp. 346, 351 ; Leggett v. sites of a valid trust since the Revised Perkins, 2 N. Y. at p. 307 ; Chapl. Ex- Statutes are fully and carefully col- press Trusts & Pow., § 395. lated in my Essay on Charitable Uses 1 Supra, pp. 273, 274; infra, pp. 409, and Trusts, 102, 103. 410. 24 370 The Four Express Trusts. It is obvious also that there must always be some definite res, land or personal property which is the subject of the trust.* There must also be a definite person, if the trust is not charitable, entitled to enforce the trust, and this beneficiary must be ascertained or ascertainable.^ No Particular Language Necessary to Create a Trust. No particular language is necessary to create an express trust in lands or a power in trust.^ The trust may be implied,'' but only where it is necessary to carry out the scheme of the settlement.* Not every wish, en- treaty or desire of a donor or testator will create a precatory trust.* Originally all trusts were conditions and care must be taken to distinguish between a trust and a condition subsequent, for the distinction is not always clear.^" It is sufficient if the trust purpose is clearly manifested,^^ in writing. ^^ Nor is the appointment of a * Hickock V. Bunting, 67 App. Div. 560, 562. 5 See note 80, p. 450, infra, under § 93, infra, and Jay v. Lee, 41 Misc. Rep. 13 ; Trunkey v. Van Sant, 176 N- Y. 535, 540. * Tobias v. Ketchum, 32 N. Y. 319, 327 ; Morse v. Morse, 85 id. 53 ; Felter V. Ackerson, 35 App. Div. 282, 283; Staple V. Hawes, 39 id. 548, 552; Hub- bard V. Housely, 43 id. 129, 132; Kelly V. Hoe, 35 id. 273, 276; Matter of Chase, 40 Misc. Rep. 616; Nichols v. Nichols, 42 id. 381. ''Woodward v. James, 115 N. Y. 346; U. S. Trust Co. V. Maresi, 33 Misc. Rep. 539; Matter of Chase, 40 id. 616. 8 Butler V. Butler, 41 App. Div. 477, 480; Wood V. Ward, 76 id. 567. »Clay V. Wood, 153 N. Y. 134; Street v. Gordon, 41 App. Div. 439; Huggins V. Lewis, 31 Misc. Rep. 292; cf. Phillips V. Phillips, 112 N. Y, 197; CoUister v. Fossett, 163 id. 281 ; Col- ton V. Colton, 127 U. S. 300. '^'^ Supra, p. 12; Birdsall v. Grant, 37 App. Div. 348; Associate Alumni V. General Seminary, 26 id. 144, 163 N. Y. 417; United States v. Lough- rey, 172 U. S. 206, 221 ; Matter of Raab, 42 App. Div. 141 ; Jones v. Nichols, 42 id. 515. 11 Leggett V. Perkins, 2 N. Y. 297 ; Wright V. Douglass, 7 id. 564; Dil- laye v. Greenough, 43 id. 445 ; Vernon V. Vernon, 53 id. 351 ; Heermans v. Robertson, 64 id. 322 ; Moore v. Hege- man, 72 id. 376, 384; Donovan v. Van De Mark, 78 id. 244; Heermans v. Burt, id. 259; Cass v. Cass, 15 App. Div. 23s; Morse v. Morse, 85 N. Y. 53 ; Ward v. Ward, 105 id. 68 ; Toronto Trust Co. V. C, B. & Q. R. R. Co., 123 id 37 ; Steinhardt v. Cunningham, 130 id. 292, 299; § 207, The Real Prop. Law ; Brown v. Brown, 25 App. Div. 45 ; Felter v. Ackerson, 35 id. 282 ; Kelly v. Hoe, 35 id. 273, 276; Matter of Gawne, 82 id. 374. ^^ Infra, § 207, The Real Prop. Law; Hutchins v. Van Vechten, 140 N. Y. IIS ; 2 R. S. 135, § 7, as amended by chap. 322, Laws of i860, repealed, and § 207 substituted ; cf. Wright v. Douglass, 7 N. Y. 564. The Four Express Trusts. 371 trustee essential to the validity of an express trust.^'* As the doctrine of cy pres has but a limited application in this State/* and is gener- ally of statutory obligation only/^ the trust, if for private uses, must be clearly worked out by the settlor or the court will not enforce it.^^ If the trust is for charitable or religious uses another rule may prevail.^^ Identity of Trustee and Cestui Que Trust. But the cestui que trust and the trustee appointed by the settlement cannot be the very same persons.^* There is, however, a manifest distinction between the case of a failure to designate a trustee, and a limitation giving both the legal estate and the equitable interests to the same person eo nomine}^ It has been lately held that it is not definitely decided that the union of the legal title and the beneficial interest in the same person operates to destroy the express trust.^** It certainly ought not to so operate in all cases; it should often be held to inca- pacitate the beneficiary from holding in trust, rather than destroy the trust and merge the beneficial interests in the legal title ;^' for, merger is a matter of intention in equity, and legal estates and equitable interests do not always merge.^^ It is intimated in this connection, that merger may be prevented by construing the express trust as a power.^^ But on what principle? It could only be that an intermediate estate prevents a merger of estates.^* But 13 Downing v. Marshall, 23 N. Y. Steinway, 10 Misc. Rep. 563 ; Mulry at p. 382; Levy v. Levy, 33 id. 102; v. Mulry, 89 Hun, 531; Matter cf Wetmore v. Truslow, 51 id. 338; Hoi- Hitchins, 39 Misc. Rep. 767; Matter land V. Alcock, 108 id. at p. 330; of Conger, 81 App. Div. 493, 498; cf. Kirk V. Kirk, 137 id. 510, 514; Cross Wetmore v. Truslow, 51 N. Y. 338. V. U. S. Trust Co., 131 id. 330, 350; 20 See Rankin v. Metzger, 69 App. McDougall V. Dixon, 19 App. Div. Div. 264, 269; Matter of Conger, 81 420. id. 493, 498; Losey v. Stanley, 147 ^* Infra, pp. 540, S4i> § 152. N. Y. s6o; cf. Matter of De Kay, 4 15 See under §§ 93, 152, infra. Paige, 403; Tuck v. Knapp, 42 Misc. ''■^ Supra, p. 370, note u ; Trunkey Rep. 140. V. Van Sant, 83 App. Div. 272; Mat- 21 Rogers v. Rogers, 11 1 N. Y. 228; ter of Palmer, 85 id. 117. Haendle v. Stewart, 84 App. Div. '^'^ Vide under § 93, infra. 274; Brown v. Spohr, 87 id. 522, 529. 18 Matter of De Kay, 4 Paige, 403 ; 22 yi^e infra, p. 386. Tuck v. Knapp, 42 Misc. Rep. 140. 23 Matter of Conger, 81 App. Div. 19 Greene v. Greene, 125 N. Y. 506 ; 493 ; Matter of Hitchins, 39 Misc. Rose V. Hatch, id. 427; Woodward Rep. 767. Vide infra, under § 137. V. James, 115 id. 346; Steinway v. 24Brandt v. Brandt, 25 Misc. Rep. 359; Sweet V. Schlieman, 95 App. Div. 266. 372 .The Four Expkess Trustts"^ an equitable interest is not now ffifliestate. It is certaiii! that^altliGsnglr the trustee and the sole cestui que- trust ought mot to be tHie same p'^son, the fact that one of severaJ! testamentary tnistecs- is one. -of ihe beneficiaries does not incapacitate Mm from acting as- trustee for his co-beneficiaries, nor work a merger of the equataWe intexest.^® A beii^ficiary of a trust can take in fee after tte trust (state ■terminates,^^ and the interests do not merg^e. Benefici^f y's Consent not Necessary to Cieatibn of Trust. In order' tO' 'constitute a valid trust it is not necessary that the- Beneficiaries ■shoiild assent to, or have knowledge of,, the creation ©f the trust. ^,y tile settlor.^'' Consent is presumed, even infantsf,. fi-om tlie beneficial nature of the donation, at lea:sfe,. until disa?«owed after their attaining majority. Express Trusts for Alienation. Trusts provided for under suMii- visions 1 and 2 of this section have been called trusts for the- purposes of alienation. They are thus contra-distingaished from the^ trust purposes specified in subdivisions 3 and 4,^ which under tfre peculiar provisions of the Revised Statutes have been held to suspend the power of alienation and, therefore, to be within the rule agairrst perpetuities.^^ The trusts for alienation need not be ri'mited ort lives in being,^* although the trust term necessary for the execution of the trusts may be of some duration.^^ But limitations on trusts \/hich suspend the power of alienation must be measttred by Eves in being or they are void.*^ The Four Statutory Express Trust Purposes. Having considered the nature of express trusts under the Revised Statutes and under the present section of the Real Property Law, we may proceed to consider somewhat more at large and in detail each of the four express trust purposes enumerated in this section. 25 Rogers V. Rogers, in N. Y. 228; N. Y. 134, 147; Leggett v. Perkins, 2 Rankin v. Metzger, 33 Misc. Rep. 581. id. at p. 326. 26 Cass V. Cass, 15 App. Div. 235. 29 vUg infra, p. 380. 27 Martin v. Funk, 72 N. Y. 134 ; 30. Hawley v. James, 16 Wend, at Maloney v. Tilton, 22 Misc. Rep. 682. p. 153. They are presumed to be exe- 28 Mr. Justice Bronson, Hawley v. cuted or performed eo instanti. Cf. James, 16 Wend, at p. 153; Cowen v. Deegan v. Wade, 144 N. Y. 5731 Rinaldo, 82 Hun, 479; In re Fisher's Manice v. Manice, 43 id. at p. 365; Estate, 25 N. Y. Supp. 80; 4 Misc. Eells v. Lynch, 8 Bosw. 465, 481. Rep. 46 ; Chapl. Express Trusts & ^i cf^ Becker v. Becker, 13 App. Pow., § 386; cf. Hascall v. King, 162 Div. 342, overruled, 162 N. Y. 134. 32 Infra, p. 381. The Four Express Trusts. 373 Trusts to Sell for Benefit of Creditors. ( I ) Trusts to sell real prop- erty for the benefit of creditors. Here it was deemed desirable that the trustee for creditors should ordinarily take the legal title, for had it remained in an insolvent debtor complications might have arisen concerning priorities, or under the recording acts.^^ So it was thought expedient that the expressed assent of creditors should not be required.^* A general assignment for the benefit of creditors, in so far as it involves lands, is an express trust of the first class,^ as is a trust of part of an estate for particular creditors.^® The creditors contemplated by this first trust purpose are existing creditors.^'^ The sale provided for in a trust limitation to sell for the benefit of creditors must be absolute and imperative, without discretion, except as to the time and manner of performing the duty imposed. It is not sufficient to invest the trustee with a merely discretionary power of sale, which he may, or may not, exercise at his option. The sale must be the direct and express purpose of the trust.^® The trust embraces all the property conveyed, even though a part only is necessary to satisfy the debts of the bene- ficiaries.^® The trustee of this trust purpose may take a fee when the trust is created by deed,** but when created by devise to execu- tors or other trustees, only a power of sale.*^ The cessation of the trust estate of a trustee for the benefit of creditors is regulated by a special provision of the statute, which will be considered in that connection.*^ 33 Revisers' note to i R. S. 728, Steinhardt v. Cunningham, 130 id. § SS; People ex rel. Short v. Bacon, 292, 300. 99 N. Y. 275, 279; Heermans v. Rob- 39 Bennett v. Garlock, 79 N. Y. 302, ertson, 64 id. 332, 342. 318. 34 Cunningham v. Freeborn, 11 « Fide JM/ira, pp. 273, 274, 275, under Wend. 240, 247. i 34. The Real Prop. Law; Briggs v. SBChapl. Express Trusts & Pow., Davis, 21 N. Y. 574; Bennett v. Gar- § 397; Heermans v. Robertson, 64 N. lock, 79 id. 302, 317; People ex rel. Y. at p. 342; Northam v. Dutchess Short v. Bacon, 99 id. 275, 279; cf. County Mutual Ins. Co., 166 id. 319, Losey v. Stanley, 147 id. 560, 568; 322. Heermans v. Robertson, 3 Hun, 464, 36 Knapp V. McGowan, 96 N. Y. 75, affd., 64 N. Y. 332 ; Northam v. 85 ; Royer Wheel Co. v. Fielding, loi Dutchess County Mutual Ins. Co., 166 id.' 504. id. 319, 322. Cf. infra, pp. 384, 38S- 37 Rome Ex. Bank v. Fames, 4 Abb. *1 Infra, § 77, The Real Prop. Lavif ; Ct. App. Dec. 83. Hawley v. James, 16 Wend, at p. 114. 38 Cooke V. Piatt, 98 N. Y. 35, 38, *« infra, § 90, The Real Prop. Law, 39 ; Woerz v. Rademacher, 120 id. 62 ; but see under § 34, supra, argument that this makes it none the less a fee, 374 The Foue Express Trusts. Trusts for Annuitants, Legatees or to Satisfy Charges. (2) Trusts to sell, mortgage or lease real property for the benefit of annuitants or other legatees or for the purpose of satisfying any charge thereon. The words " of annuitants " are new to this subdivision. But before this amendment it was held that a trust for a so-called " annuitant " was a valid express trust.*^ As stated before, the term " annuitant " has acquired a more extended meaning than at common law,** and now ordinarily denotes a trust beneficiary entitled to annual payments or possibly to a gross sum.*^ The term is also used antithetically to indicate a trust beneficiary entitled to an annual payment for a term less than his own life f^ or it may have reference to an annual charge on land*'' and also to a beneficiary of a fund converted from realty by a peremptory power of sale. Obviously an annuitant must now be a legatee to come under this subdivision. At common law annuities were most often legacies.*^ This trust purpose refers to an alienation of land for the benefit of particular persons or to enable the trustee to satisfy a charge on land. The mode of alienation specified is threefold : by a sale, or a mortgage, or a lease. The beneficiaries of this trust must be lega- tees,*® including annuitants.^" The context shows that the annui- tants meant are always legatees. Tlie sale under this subdivision must be peremptory, not discretionarj^.^^ A trust to sell does not « Cochrane v. Schell, 140 N. Y. 527, affd., 154 N. Y. 147; Clark v. 516; Hooker v. Hooker, 41 App. Div. Clark, 147 id. 639; cf. 2 White & 23s, 240. Tudor, Lead. Cas. in Eq. 270; Mc- *'' Supra, pp. 264, 26s, 266, under Guire v. McGuire, 80 App. Div. 63. i 32, The Real Prop. Law. *^ Tucker v. Tucker, 5 N. Y. 408 ; « Graff V. Bonnett, 31 N. Y. 9 ; Matter of Thorne, 44 App. Div. 8, 10 ; Lang V. Ropke, s Sandf. 363 ; Coch- Dunham v. Deraismes, 165 N. Y. 65. rane v. Schell, 140 N. Y. 516, 535; *8 See note to 2 White & Tudor, MascTi V. Mason's Exrs., 2 Sandf. Lead. Cas. in Eq. 265 seq. Ch. 525 ; McCosker v. Brady, l 49 a person entitled to a gift by a Barb. Ch. 329 ; Booth v. Baptist last will ; Weeks v. Cornwell, 104 N. Church, 126 N. Y. 215; Market & Y. 325, 338, 342. Fulton Nat. Bank v. Nassau Trust ^'^ As to the persons comprised in Co., 27 Misc. Rep. 690; Hooker v. this class, see supra, pp. 264, 265, 266. Hooker, 41 App. Div. 235, 240 ; Haf- 5i Cooke v. Piatt, 98 N. Y. 35, 38, ner v. Hafner, 34 Misc. Rep. 65 ; 39 ; Woerz v. Rademacher, 120 id. 62 ; Rothschild v. Roux, 78 App. Div. Steinhardt v. Cunningham, 130 id. 282; Matter of Viele, 35 id. 211, 213. 292, 300. *8 Buchanan v. Little, 6 App. Div. The Four Express Trusts. 375 authorize a mortgage.®^ A trust to mortgage is but another mode of alienation.®^ A trust to lease at first seemed to contradict the rule against per- petuities and to imply a trust for the term of the lease, for at com- mon law rents could not be reserved to a stranger.®* But this rule of the common law is now modified so that the lease may reserve the rent directly to the legatee, or the trustee may sell outright a term of years for a gross sum under this subdivision ; and, therefore, this trust does not necessarily violate the rule that a lawful trust term can be limited only for lives in being. The trusts contemplated under this subdivision, indeed, do not suspend the power of alien- ation.®® How far a trust to lease lands for the purpose of paying mortgages is allowable under this subdivision, was a matter of some uncertainty for a time owing to the decision in Becker v. Becker.®^ Before that decision it was commonly thought that a trust to pay mortgages out oi rents was a trust falling only under the fourth subdivision of this section and, therefore, void as a direction for unlawful accumulation. ®^ But the Court of Appeals adhered to the earlier law and declared a trust for the payment of mortgages void, as an unlawful accumulation.®* Thus the temporary aberration, occasioned by the decision in Becker v. Becker, is now at an end.®® A trust for the purpose of paying off indebtedness has been held void.®** But the statute is not violated bv an accidental accumula- ®2 Potter V. Hodgnian, 8i App. Div. Y. 34. And see Matter of Hafner, 45 233. App. Div. 549. ®3 Hawley v. James, 16 Wend, at p. ®'^ Vide supra, pp. 320, 321, under 153. § 51, The Real Prop. Law; Bean v. ®* Litt., § 346; Hawley v. James, Hockman, 31 Barb. 378; Killam v. id., supra; cf. Becker v. Becker, 13 Allen, 52 id. 605 ; Cowen v. Rinaldo, App. Div. 342. 82 Hun, 479, 484; Re Fisher's Estate, ®® Hawley v. James, 16 Wend, at 4 Misc. Rep. 46. PP- 153. IS4. 155 ! '^f- Becker v. Becker, B8 Hascall v. King, 162 N. Y. 134, 13 App. Div. 342; Garvey v. Mc- overruling 28 App. Div. 280, and 13 Devitt, 72 N. Y. 556, 562; Eells v. id. 342; Matter of Koss, 177 N. Y. Lynch, 8 Bosw. 465, 481 ; Hascall v. 371 ; Lowenhaupt v. Stanisico, 95 App. King, 162 N. Y. 134, 148. Div. 171. ®^ 13 App. Div. 342, where it was ®® Hafner v. Hafner, 34 Misc. Rep. held that a mortgage was a charge on 65; 62 App. Div. 316; Dodsworth v. land; Hascall v. King, 28 App. Div. Dane, 38 Misc. Rep. 684; Dresser v. 280; 25 N. Y. Law Jour. 355; 162 N. Travis, 39 id. 358, 361; 177 N. Y. 371. CO Matter of Hoyt, 71 Hun, 13. 376 The Four Express Trusts. tion from a fund held on valid trusts.^^ A trust to mortgage lands tor the benefit of creditors at large cannot stand under this subdi- vision.^^ The trust under this subdivision must be one for the benefit of legatees.®* A limitation exclusively within the purview of subdivisions i and 2 of this section, if invalid as an express trust, cannot be valid as a power in trust where an express trust for alien- ation by the trustees was clearly intended, as only two such trusts for alienation are permitted, and then as express trusts only."* A trustee under the second subdivision of this section, as under the first, takes a fee when the estate is created by deed or by a settlement inter vivos,^ but the trust may be only a power when it is created by will, unless the trustee is also empowered to receive the rents and profits.^ It has been said that a trustee of trusts created under this subdivision may make leases of any duration for the purposes set forth in this subdivision.^ But this primarily depends on the ques- tion whether the trustee takes a fee or an estate pur autre vie^ and also how far this subdivision was modified by chapter 886, Laws of 189s, now section 86 of this act.™ Trusts to Receive and Apply Rents and Profits. (3) Trusts to receive the rents and profits of real property, and apply them to the use of any person, during the life of that person, or for any shorter term, subject to the provisions of law relating thereto. Section 78 of this act should always be read in connection with trusts falling under this subdivision. It will be observed that the latter part of this sub- division does not refer explicitly to the article containing the rule against the suspension of the power of alienation, as did the revised section.™ But the Commissioners of Statutory Revision have re- M Vide supra, pp. 320, 321, under ^^ Infra, § 7y, The Real Prop. Law; § SI, The Real Prop. Law. Hawley v. James, i6 Wend, at p. 114; *2 Darling v. Rogers, 22 Wend. Palmer v. Marshall, 81 Hun, 15. Cf. 483 ; Irving v. De Kay, 9 Paige, 521, Hubbard v. Housely, 27 Misc. Rep. 529. 276, 43 App. Div. 129; Horsfield v. 63 Weeks v. Cornwell, 104 N. Y. Black, 40 App. Div. 264, 267 ; Russell 32s, 338; supra, p. 374; Hubbard v. v. Hilton, 80 id. 178. Housely, 43 App. Div. 129. ^^ Hawley v. James, 16 Wend. 153- 6* Vide infra, under § 79, The Real 155 ; Matter of Hoysradt, 20 Misc. Prep. Law; Garvey v. McDevitt, 72 Rep. 265, 270; cf. Matter of Armory N. Y. 556, 562; cf. Bailey v. Bailey, Board, 29 Misc. Rep. 174, 28 Hun, 603, 609. ^ Supra, pp. 273, 274. 65 Supra, pp. 273, 274 ; et infra pp. ^^ Infra, p. 428. 388, 389- ™ I R- S. 728, § 55 ; supra, p. 365- The Four Express Trusts. 377 ported to the Legislature that the verbal changes in this section were not intended to make any change in the antecedent lawJ^ This trust purpose, therefore, remains one of those which have been called trusts suspending the power of alienation. ''^ Its duration must not, consequently, exceed the limit allowed by law.''^ At the head of the observations on this section of the Real Property Law, the change instituted by chapter 320 of the Laws of 1830 was noticed.'^* As the avowed purpose of the Revised Statutes was to abolish all passive uses and trusts, such as one to receive the rents and profits of land and to pay them over to an adult beneficiary sui juris, the question soon arose whether such a trust in lands was to be tolerated under this subdivision.^^ As originally drawn, the revisers no doubt in- tended that the trustees of a trust created by a third person, to re- ceive and pay over, should be the arbiters of the beneficiaries' necessities,^® and that the beneficiaries themselves should be persons non sui juris, such as infants, femes covert, lunatics and spend- thrifts." The amendment of 1830 was thought at first not to change the character of this trust purpose and not to authorize a mere trust to receive and pay over rents.^* But in Leggett v. Per- kins™ it vra.s finally adjudged that a trust to receive the rents and profits of lands and pay them over to any beneficiary, sui juris or non sui jiiris,^^ was good under this section of the statute regulat- ing express trusts, and that the settlor was the sole jtidge of the person who should be designated as a beneficiary.^^ This trust to ^1 Appendix I; see Report with 321, 330; Gott v. Cook, 7 Paige, 521, § 76, The Real Prop. Law. 537 ; 24 Wend. 641 ; Campbell v. Low, '^^ Supra, p. 372. 9 Barb. 585; Mason v. Jones, 2 id. "i^ Infra, p. 381. 229; Jarvis v. Babcock, 5 id. 139; ''* Supra, p. 365. Donovan v. Van De Mark, 78 N. Y. ■fs Coster V. Lorillard, 14 Wend. 244, 246 ; Crooke v. County of Kings, 265 ; Hawley v. James, 16 id. 61 ; Leg- 97 id. 448. gett V.Perkins, 2 N. Y. at pp. 321, 322; ^8 ifj._ supra, et cf. 1 R. S. 728, § 57, Moore v. Hegeman. 72 id. at p. 384; now § 78, The Real Prop. Law. Schenck v. Barnes, 25 App. Div. 153, T9 2 N. Y. 297, 308, 321, 325 ; 158. Tucker v. Tucker, 5 id. 408, 416; '8 The original trust purpose was Moore v. Hegeman, 72 id. 376, 384 ; " to receive rents and profits of lands Gott v. Cook, 7 Paige, at p. 538. and apply them to the education and 80 Except a corporation not author- support, or either, of any person." ized to take, vide supra, p. 348. 1 R. S. 728, § 55, supra, p. 365. 8I Leggett v. Perkins, 2 N. Y. at 77 Craig v. Hone, 2 Edw. Ch. 554 ; pp. 32S, 326 ; cf. Holden v. Strong, Coster V. Lorillard, 14 Wend. 265, 116 id. 471; Matter of Stevens, 20 378 The Four Express Trusts. receive and pay over is not, however, a passive trust, but an active express trust.^^ Such a trust for a minor leaves a discretion in the trustee f^ and so a trust to apply principal and income for use of a beneficiary.** A trust to apply income to education and support of infant is of course an active trust under this subdivision.*^ Under this subdivision a trust may be created for the payment of annuities,*^ although a trust to pay over net income annually is not strictly an " annuity," in the common-law sense of that abused term.*^ Trusts to receive rents and profits and apply them to the use of a m.arried woman are most frequent. A married woman stands in the same position as a feme sole in respect of such trusts since the Revised Statutes.** Trusts for the Benefit of Settlor. A very obvious distinction exists, ttnder this subdivision 3, between such trusts created by third persons and trusts created by a settlor solely for his own benefit. When the trust in question is created for his own benefit by the settlor, it is declared void as to creditors existing or subsequent.*^ Duration of Trusts to Receive and Apply Rents, etc. The precise dura- tion of trusts, under the third subdivision, may be left to the dis- cretion of a trustee, provided it does not exceed the period pre- scribed for trusts suspending the power of alienation ; ^^ and it need Misc. Rep. 157; Fenton v. Fenton, 35 Clason, 11 Paige, 136 ; Buchanan v. Lit- id. 479. tie, 6 App. Div. 527, 154 N. Y. 147; *2 Cooke V. Piatt, 98 N. Y. 35, 39 ; Hooker v. Hooker, 41 App. Div. 231, cf. Townshend v. Frommer, 125 id. 240; Rothschild v. Roux, 78 App. Div. 446; Sherman v. Skuse, 45 App. Div. 282. 335 ; McComb v. Title Guarantee 87 Supra, pp. 264, 265. Co., 36 Misc. Rep. 370 ; Potter v. 88 L'Amoureux v. Van Rensselaer, i Hodgman, 81 App. Div. 233; Matter Barb. Ch. 34, 37. of Stewart, 88 id. 23. 89 2 R. S. 135, § i ; Schenck v. 83 Matter of McCormick, 40 App. Barnes, 25 App. Div. 153, 156 N. Y. Div. 73. 316; Young v. Heermans, 66 id. 8* Holden v. Strong, 116 N. Y. 471; 374; Spies v. Boyd, i E. D. Smith, Matter of Stevens, 20 Misc. Rep. 157. 445, 448, and see, infra, under § 78, 85 Robinson v. Adams, 81 App. Div. The Real Prop. Law. 20. ^^ Kernochan v. Marshall, 41 App. 86 Cochrane v. Schell, 140 N. Y. Div. 429, revd., 165 N. Y. 472. Cf. 516, overruling Lang v. Ropke, s Snedeker v. Congdon, id. 434; Can- Sandf. 363, on this point; cf. Beeman field v. Canfield, 118 Fed. i; Button V. Beeman, 88 Hun, 14; De Graw v. v. Hemmens, 92 App. Div. 40. The Four Express Trusts. 379 not be made dependent on the life of the beneficiary, as once in- timated in Downing v. Marshall. ^^ The person on whose life the trust depends, (i. e., cestui que vie,) may be a stranger to the trust.®^ Trusts to Accumulate. (4) Trusts to receive the rents and profits of real property, and to accumulate the same for the purposes, and within the limits prescribed by law. Here again the slight change in phrase of the present act has not altered the antecedent law ; the trust purpose remains the same as under the Revised Statutes.^^ Trusts in land for accumulation are the second class of trusts sus- pending the power of alienation, or at all events they fall by common consent within the rule directed against a perpetuity.** The limits to trusts for accumulation are distinctly pointed out in the prior article of The Real Property Law.^^ The cases controlling limita- tions of this character in this State have been cited and arranged in connection with section 51,®® regulating all directions for accumu- lation, and reference to them will here suffice. It may be observed that trusts 'or accumulation are the only executed trusts that at common law were subject to the rule against a perpetuity.®^ They are now subject to an inflexible rule of their own, a modification of the Thelluson act."® Executed Trusts did not Formerly tend to Perpetuities. The rule against perpetuities had at common law little or no application to those limitations in trust which were not trusts for accumulation.®® The "1 23 N. Y. 366, 377. Belmont v. O'Brien, 12 N. Y. at p. 92 Bailey v. Bailey, 97 N. Y. 460 ; 401 ; Robert v. Corning, 89 id. 225 ; Crooke v. County of Kings, id. 421. Grafif v. Bonnett, 31 id. 9, 19; Hillen 93 Report to the Legislature by the v. Iselin, 144 id. at p. 379 ; Schenck y. commissioners of statutory revision; Barnes, 25 App. Div. 153, 155. So it cf. I R. S. 728, § SS ; supra, p. 365. was argued at first that trusts of per- 0* Radley v. Kuhn, 97 N. Y. 26, 31. sonalty did not suspend the power of 95 § 51, art. II. alienation even after the Revised 98 Supra, pp. 318-325. Statutes, as it was thought they were 97 Ram, Wills, 16; Lewis, Perp. not within the article on trusts. Ar- chap. 28, et infra. nold v. Gilbert, 3 Sandf. Ch. 551 ; ^^ Supra, pp. 318-324. Graff v. Bonnett, 31 N. Y. at p. 19. 99 Sinclair v. Jackson, 8 Cow. 543, Had this contention prevailed the in- 584; Craig v. Hone, 2 Edw. Ch. 554, terests of the cestuis que trustent 561 ; Mr. O'Conor in Harris v. Clark, might violate the rule, as at common 7 N. Y. at p. 253 ; Hawley v. James, law. But it was held otherwise. See 16 Wend, at pp. 66, 121 ; Leggett v. Fowler, Pers. Prop. Law, pp. sy, 38, Perkins, 2 N. Y. at p. 327 ; Dutch and cases cited. Church V. Mott, 7 Paige, at p. 83; 380 The Four Express Trusts. trustee might freely alienate the trust estate, and if the purchaser acquired it without notice and for value, he held it free of the trusts.! Any undue restraint imposed, in the creation of the trust, on the power of alienation (except in the sole case of trusts for married women, which was an exception to the rule)^ might vitiate the trusts.* Express Trusts in New York now tend to Perpetuities. Express trusts, in New York, were made subject to the rule against perpetuities only by force of that provision of the Revised Statutes which for- bade the trustee to alienate the trust estate in contravention of the trust.* It is not that provision of the statute which forbids the beneficiary to assign his interest in the trust that now causes a trust in New York to tend to restrain the power of alienation, but section 85 of this law, forbidding the trustee to alienate.^ As executed express trusts are subject to the rule against perpetuities only by force of the statute preventing alienation by trustees, it might appear that sections 85 and 86 of this act had relieved them to some extent from the rule, as trustees may now alienate the trust estate in contravention of the trusts. But such is not the case, for the power of alienation is suspended whenever it cannot be exercised without permission of a court of justice,® and sections 85 and 86 require such an application. 1 Hawley v. James, 16 Wend, at p. 121 ; Harrington v. Erie County Sav. Bank, Id N. y. 257. 2 Bryan v. Knickerbocker, i Barb. Ch. 409, 412; Lewin, Trusts (Last ed.), 98, 693, 781; and see brief of Mr. Sandford, in Noyes v. Blakeman, 6 N. Y. at pp. 574, 575, 576 ; Haynes, Outlines of Equity, 211. 3 Lewin, Trusts (ist ed.), 138; (Last ed.) 98; cf. Rice, Mod. Law of Real Prop., § 223, on valid " spend- thrift trusts." *§ 8s, The Real Prop. Law; i R. S. 730, § 6s ; Leonard v. Burr, 18 N. Y. at p. 107 ; Everitt v. Everitt, 29 id. at p. 90 ; Smith v. Edwards, 88 id. 92 ; Robert v. Corning, 89 id. 225 ; Booth V. Baptist Church, 126 id. 215, 237; Murphy v. Whitney, 140 id. 541, 546; Hillen v. Iselin, 144 id. at p. 379; Williams v. Montgomery, 148 id. 519, 526; Rome Exchange Bank v. Eames, 4 Abb. Ct. App. Dec. 83, 99; Hallett V. Thompson, 5 Paige, at p. 586; De Graw V. Clason, 11 id. at p. 140. Graff V. Bonnett, 31 N. Y. g, 25. 5§ 83, The Real Prop. Law; Robert v. Corning, 89 N. Y. at p. 236; cf. Lewin, Trusts, 97; Coster v. Lorillard, 14 Wend, at p. 319; Everitt V. Everitt, 29 N. Y. at p. 90; Garvey V. McDevitt, 72 id. at p. 562; Cuth- bert V. Chauvot, 136 id. 226, 235 ; Vail V. Vail, 7 Barb. 226, 235 ; Mills V. Mills, so App. Div. 221 ; Douglass V. Cruger, 80 N. Y. is, 18. ® Genet v. Hunt, 113 N. Y. at p. The Four Express Trusts. 381 What Express Trusts now Suspend the Power of Alienation. Limitations in trust being subject to the existing rule against a perpetuity only by force of the statute, it remains to consider what limitations are within such jule. The limitations so subject are called the trusts which suspend the power of alienation/ and are contradistinguished from trusts for alienation, which are, of course, not within the existing rule against a perpetuity.* The trusts which suspend the power of alienation, and are, therefore, within the rule, are trusts to receive the rents or profits of lands and apply to the use of, or pay to, beneficiarie s, and trusts for accu mulation. Trusts for other purposes do not necessarily render the estate inalienable, and, therefore, do not tend to a perpetuity.® Trusts to Receive and Apply Rents and Profits. Trusts to receive and apply income etc., are closely connected with section 78 of this act. As trusts for "accumulation are allowed during an actual minority only,^" it is necessary to consider, in connection with the rule against perpetuities,-'* only those trusts which are trusts to receive rents and profits of lands and apply them to the use of beneficiaries. Such are clearly within the statutory rule against perpetuities, and, therefore, their validity depends on the correspondence to the requisites of that rule. Two Lives in Being the Lawful Measure of a Trust Term. The trust term must be limited on lives in being, which cannot exceed two.*^ 172; Grey, Perp., § 527; cf. Mills v. Mills, so App. Div. 221. "' Supra, pp. 372, 377. 8 Supra, pp. 372, 375. 9 Radley v. Kuhn, 97 N. Y. 26, 31 ; Rice V. Barrett, 102 id. 161, 164; Boynton v. Hoyt, i Den. 53 ; Griffin v. Ford, I Bosw. 123, 142; Eells v. Lynch, 8 id. 46s, 481 ; supra, pp. 372, 375- *" § SI, The Real Prop. Law; supra, pp. 318-327. 11 § 32, The Real Prop. Law; supra, pp. 236-266. 12 Vide supra, § 32, The Real Prop. Law, and pp. 242-267, of this book; Yates V. Yates, 9 Barb. 346; Tucker V. Tucker, 5 N. Y. at p. 417 ; Jennings V.Jennings, 7 id. 547, 548; Beekman v. Bonsor, 23 id. at p. 316; Hobson v. Hale, 9S id. at p. 611 ; Rice v. Barrett, 102 id. 161, 164; Henderson v. Hen- derson, 113 id. I ; Cruikshank v. Home for the Friendless, 113 id. at p. 3SI ; Greene v. Greene, 12s id. $06, 510; Booth V. Baptist Church, 126 id. 21S, 236; Underwood v. Curtis, 127 id. S41 ; People V. Simonson, 126 id. 299 ; Bigelow v. Tilden, 18 Misc. Rep. 689; Benedict v. Webb, 98 N. Y. 460 ; Fow- ler v. Ingersoll, 127 id. 472; Haynes v. Sherman, 117 id. 433; Matter of Ackerman, 36 Misc. Rep. 732; Matter of Conger, 81 App. Div. 493 ; Bin- drim v. Ullrich, 64 id, 444; Almstaedt V. Benedict, 47 id. 26s ; La Farge v. Brown, 31 id. S42; Ahem v. Ahem, 382 The Four Express Trusts. It cannot be measured by a definitive space of time, not part of a life in being.^* A trust for an actual minority is not, however, one for twenty-one years in gross, but is a trust limited on a lesser period than an actual life in being, and the trust term determines if death ensue before majority.^* The two lives in being, measuring a lawful trust term, need not be connected with the estate,^^ as was formerly thought.-'^ Yet a limitation for an absolute period of time I is not invalid, provided it is made to terminate within two lives in I being at the creation of the trust.^^ As, under this statute, the j creation of an estate under the rule against perpetuities dates either from the delivery of the deed or the death of a testator,^^ the lives in being, imder section 32,^^ refer to lives in being at the death of |testator, and, therefore, the nomination by will may involve origin- ally more standard lives than a trust settlement created by deed. Thus, a devise " to trustees to take and hold in trust for the lives ;of the two eldest, or the two youngest, sons of testator living at his decease," is well measured;^" although, when the will is executed, the testator may have ten sons living. But, as a will is now ambula- tory, and takes effect only from decease of the testator,^^ the choice of the lives is, in reality, simply postponed to testator's demise. The lives selected must, however, be of persons in being,^^ although 52 id. 356 ; Mills v. Mills, 28 Misc. i'' Schermerhorn v. Cotting, 131 N. Rep. 633 ; Herzog v. Title Guarantee Y. at p. 58 ; Deegan v. Wade, 144 id. & Trust Co., 177 N. Y. 86. 573, 576; Montigni v. Blade, 145 id. 13 Matter of Murray, 75 App. Div. in; Phelps v. Phelps, 28 Barb. 12: ; 246, 249; McGuire v. McGuire, 80 id. s.c , 23 N. Y. 60; Bird v. Pickford, 63; Staples V. Hawes, 24 Misc. Rep. 141 id. 18; Brown v. Brown, 54 App. 475. 39 App. Div. 548; Brown v. Div. 6. Quintard, 177 N. Y. 75, 82. 18 § 54, The Real Prop. Law. 1* Lang V. Ropke, S Sandf. 363 ; Mc- 19 The Real Prop. Law. Gowan v. McGowan, 2 Duer, 171; 20 Jennings v. Jennings, 7 N. Y. Benedict v. Webb, 98 N. Y. 460; 547, 549; Schermerhorn v. Cotting. Becker v. Becker, 13 App. Div. 342; 131 id. 48, 63; Herzog v. Title Guar- Tayloe v. Gould, 10 Barb, at p. 398; antee & Trust Co., 85 App. Div. 549, Kernochan v. Marshall, 41 App. Div. 177 N. Y. 86. 429; Scott v. Monell, I Redf. 431, 21 See the old rule stated in Jack- 438. son ex dem. v. Blanshan, 3 Johns. 15 Croc'ke v. County of Kings, 97 292, 295. N. Y. 421 ; Bailey v. Bailey, id 460. 22 Wright v. Mercein, 34 Misc. Rep. 16 Downing v. Marshall, 23 N. Y. at 414 ; Durfee v. Pomeroy, 7 App. Div. p. 377; Parks V. Parks, 9 Paige, at 431; revd., 154 N. Y. 583. p. 123. The Four Express Trusts. 383 for this purpose an infant en ventre sa mere, is a life in being.^ In a settlement by deed the lives must be fixed at the date of de- livery of the deed. Land and Proceeds of its Sale. Land cannot be " tied up " in trust for one life, and then the proceeds of a sale thereof tied up for two more lives. The entire trust is one and the same.^* Power of Sale. The mere creation of a trust, it will be remembered, does not ipso facto suspend the power of alienation; it is only sus- pended when a sale by the_Jru& tee dur ing the trust term would be in contraventi on of the tr ust.^ Wheretlie~frust is such an one as precludes a sale by the trustee by direction of the statute, the insertion of a power of sale in the settlement does not relieve the limitation from the operation of the statutory rule against a perpetuity.^® Beneficiaries of a Trust. If the trust term be well limited on one \ or two lives in being, the rents and profits may be given to any tiumber of beneficiaries or cestuis que trustent,^ whether persons in esse or not in esse.^^ Where the beneficiaries are numerous they ordinarily take and hold as tenants in common, distributively, and on the death of one the income does not go to the other tenants in common, but to those entitled to the residuary estate.^® Annuitants. The confusion in the use of the term " annuitant " is to be regretted, as it embarrasses the application of principles, 23 Cogan V. McCabe, 23 Misc. Rep. 421 ; Bailey v. Bailey, id. 460 ; Scher- 739; Cooper V. Heatherton, 65 App. merhorn v. Cotting, 131 id. 48; Mat- Div. 561. ter of McLoughney, 67 App. Div. 2* Savage v. Burnham, 17 N. Y. at 148 ; Fenton v. Fenton, 36 Misc. Rep. p. 572 ; Allen v._ Allen, 149 id. 280. 479 ; cf. Parks v. Parks, 9 Paige, 107, ^ Supra, pp. 372, 380; Robert v. n6. Corning, 89 N. Y. 225 ; Williams v. 28 Oilman v. Reddington, 24 N. Y. Montgomery, 148 id. 519, 526; Haw- 9, 14; Crooke v. County of Kings, 97 ley V. James, 16 Wend, at p. 61 ; id. 421, 438 ; Woodgate v. Fleet, 64 Stoiber v. Stoiber, 40 App. Div. 156. N. Y. 566; Harrison v. Harrison, 36 26Hobson V. Hale, 95 N. Y. 588, id. S43; cf- Wright v. Mercein, 34 603 ; Amory v. Lord, 9 id. 403 ; Misc. Rep. 414 ; Durfee v. Pomeroy, Brewer v. Brewer, II Hun, 147; 7 App. Div. 431. Trowbridge v. Metcalf, s App. Div. 29 Matter of Viele, 35 App. Div. 318; cf. Spitzer v. Spitzer, 38 id. 437; 211, 213; Delafield v. Shipman, 103 Mills V. Mills, 28 Misc. Rep. 633. N. Y. 463; Matter of Ryder, 41 App. 27 Bird V. Pickford, 141 N.,Y. 18; Div. 247, 253. Crooke v. County of Kings, 97 id. 384 The Four Express Trusts. especially in regard to the right to the survival of payments after the death of the so-called " annuitant." ^'^ The term " annuitant " now includes beneficiaries entitled to annual payments.*^ Any number of " annuities " may be charged on the fund during the trust term.*^ Formerly an annuity did not suspend the power of alienation. But a charge on land was not an annuity at the com- mon law.^ Whether or hot an " annuity " charged on a trust estate is now assignable under section 83,^* may be a question foi future consideration in connection with the new phraseology. " Annuities " were never inalienable at the common law.^^ So, after the Revised Statutes, unless the entire income of the trust estate was ransacked by the trust.*® But now a trust to pay annuities is clearly an express, trust,^ and, therefore, they are not assignable under this act.^* Trust for Widow of a Beneficiary. When a trust is created for the benefit of an unmarried son, and after his death is to continue for the benefit of his widow, it is void unless limited on another life 3" Montanye v. Montanye, 29 App. Div. 377; Matter of Hafner, 45 id. 549; Hafner v. Hafner, 34 Misc. Rep. 6s ; Dunham v. Deraismes, 165 N. Y. 65 ; Turner v. Mather, 86 App. Div. 172. ^ Supra, pp. 264, 265. *2 Supra, pp. 264, 265 ; Booth v, Baptist Church, 126 N. Y. 215 ; Bu- chanan V. Little, 6 App. Div. 527; Matter of Viele, 35 id. 211; Franklin V. Minertzhagen, 39 id. 555, 559 ; Mat- ter of Central Trust Co., 48 id. 223 ; Frazer v. Hoguet, 65 id. 192; Herzog V. Title Guarantee & Trust Co., 177 N. Y. 86; cf. Hunter v. Hunter, 17 Barb. 25. 33 2 Brest. Est. 348; Bouv. Law Diet, sub voce "Annuity."' 34 Infra, The Real Prop. Law. 35 Cf. In re Throckmorton, L, R., 7 Ch. Div. 145; Hatton v. May, L. R., 3 Ch. Div. 148; Hunt Foalsten v. Furber, id. 285. 36 McGowan v. McGowan, 2 Duer, 57 ; Lang v. Wilbraham, id. 171 ; Lang V. Ropke, s Sandf. 363, 370, 371; Eells V. Lynch, 8 Bosw. 465; O'Brien v. Mooney, s Duer, 51. 3T § 76, supra; Cochrane v. Schell, 140 N. Y. 516, overruling Lang v. Ropke, 5 Sandf. 363, on this point; Buchanan v. Little, 6 App. Div. 427; aflfd., IS4 N. Y. 147; Hooker v. Hooker, 41 App. Div. 235 ; and see 4 Columbia Law Rev. 429. 38 § 83, The Real Prop. Law ; Coch- rane V. Schell, 140 N. Y. si6; McSor- ley V. Wilson, 4 Sandf. Ch. 515, 524; Clute V. Bool, 8 Paige, 83; Gott v. Cook, 7 id. S2I ; 24 Wend. 641 ; Hooker v. Hooker, 41 App. Div. 235, 240; Herzog V. Title Guarantee & Trust Co., 177 N. Y. 86; Brown v. Quintard, id. 75 ; Rothschild v. Roux, 78 App. Div. 282; cf. De Graw v. Clason, II Paige, 136; Lang v. Ropke, 5 Sandf. 336; Maurice v. Graham, 8 Paige, 483, 487. The Four Express Trusts. 385 in being, as the son may marry a person not yet born, and her life is a forbidden measure of a trust term.*® Construction — Separable Trusts. The court will not condemn a limitation in trust as void under section 32 of this act, if by another construction it may be decreed not to violate the rule directed against unlawful suspension of the power of alienation.*" On the like principle, if the purposes of a trust are separable or alternative, and some of them must arise within two lives, and others beyond that liinit, the valid limitation will be separated from the invalid, and the former only enforced.*' Where the trusts are not separately framed, but the interests of the beneficiaries are given in shares, the separable and distinct character of the trust purpose necessarily results.*^ I Powers in Trust. When an express trust is created for any other I)urpose than those falling within one or another of the foregoing subdivisions of this section, it may be valid as a power, under sec- tion 79 of this act, but the trustee cannot take the legal title. And I 39 Durfee v. Pomeroy, 7 App. Div. 431, revd., 154 N. Y. 583, 594; Wright V. Mercein, 34 Misc. Rep. 414. *o Haynes v. Sherman, 117 N. Y. 433 ; Bird v. Pickford, 141 id. 18, 21 ; Roe V. Vingut, 117 id. 204; Matter of Rowland, 37 Misc. Rep. 114, 118; Matter of Ingersoll, 41 id. 600; Post V. Hover, 33 N. Y. 593; Du Bois v. Ray, 35 id. 162; Smith v. Edwards, 88 id. at p. 102; Durfee v. Pomeroy, IS4 id. 583; Darling v. Rogers, 22 Wend, at p. 488. Edmunds, J., ex- plains the regrowth of this doctrine after the R. S. Dupre v. Thompson, 4 Barb, at p. 284. Cf. Cochrane v. Schell, 140 N. Y. S16, 527; Under- wood V. Curtis, 127 id. 526, 540; Nei- derstein v. Cusick, 83 App. Div. 36, 41- *i Savage v. Burnham, 17 N. Y. 571; Matthews v. Studley, 17 App. Div. 303; Post v. Hover, 33 N. Y. 593; Manice v. Manice, 43 id. 303, 25 384; Stevenson v. Lesley, 70 id. 512, 516; Wells V. Wells, 88 id. 323, 333; Kennedy v. Hoy, 105 id. 134, 137; Allen V. Allen, 149 id. 280; Mausbach V. New, s8 App. Div. 191 ; Dunklee v. Butler, 38 id. 99; Franklin v. Mint- zerhagen, 39 id. 555, 559; U. S. Trust Co. v. Maresi, 33 Misc. Rep. S39; Matter of Murray, 36 id. 508; s. c. 75 App. Div. 246; Haug v. Schu- macher, 28 Misc. Rep. 671, 674; Woodgate v. Fleet, 64 N. Y. 566, 573 ; Hascall v. King, 162 id. 134 ; Kalish v. Kalish, 166 id. 368; Smith V. Chesebrough, 176 id. 317; Trunkey V. Van Sant, 176 id. 535 ; cf. Brown V. Quintard, 177 id. 75, 85. *2 Savage v. Burnham, 17 N. Y. 572, 576; Stevenson v. Lesley, 70 id. 512, S16; Everett v. Everett, 29 id. 39; Monarque v. Monarque, 80 id. 320, 324; Cromwell v. Cromwell, 2 Edw. Ch. 495 ; Hooker v. Hooker, 41 App. Div. 235, 241. 386 The Four Express Trusts. this is so whether the trust is created by deed ** or by devise.** The courts favor powers in trust rather than trusts by implication.*® Remainder on Trust Term. The provisions of the statute, vesting the entire estate in the trustees of an express trust, do not prevent a vaHd limitation of a remainder (in fee) *^ to the same persons who are beneficiaries of the trust, during the existence of the trust term. Nor does the legal estate in remainder merge in the equitable interests of such beneficiaries, because they so take in remainder. Merger. Merger is in equity largely a matter of intention.*'' It is never allowed against the intention of the parties, or where two estates are held in different rights.*^ An intervening estate pre- vents merger.** Legal estates and equitable interests do not always merge.^* Limitation of Vested Remainder in Trust. A devise of a remainder in trust for two lives in being, after a vested life estate, does not contravene the rule against perpetuities.^^ Limitation after Trust Estate for Life in Being. When an estate is given to trustees for the life of " A " remainder at the death of A to " B " and " C," the latter take a vested remainder as of the inception of the trust, and the remainder is well limited.^^ Trustees' Actions. Trustees of an express trust may resort to a court of equity for a construction of an instrument limiting an *3 Rawson V. Lampman, s N. Y. ^ Stevenson v. Lesley, 70 N. Y. 456; Heermans v. Burt, 78 id. 259, 512; Losey v. Stanley, 147 id. 560; 266; Nat. Bank of Commerce v. Bank Doane v. Mercantile Trust Co., 24 of New York, 17 Misc. Rep. 691. Misc. Rep. 502, 504; Cass v. Cass, 15 ** § 77, The Real Prop. Law. App. Div. 235 ; O'Donoghue v. Boies, 45 Matter of Conger, 81 App. Div. 159 N. Y. 87, 97 ; Sweet v. Henry, 17s 493> 499, and cases there cited ; and id. 268, 279 ; cf. § 83, The Real Prop, see under § 117, infra. Law, infra. *6 Supra, pp. 204, 27s, 290, under 61 Bailey v. Bailey, 97 N. Y. 460, §§ 28, 34, 40, The Real Prop. Law. 470; Corse v. Chapman, 153 id. 466; *T Sweet V. Henry, 175 N. Y. 268, Jesup v. Pringle Memorial Home, 27 279. Misc. Rep. 427, 433; Snedeker v. 48 Matter of Gilbert, 104 N. Y. 200 ; Congdon, 41 App. Div. 433 ; Kessler v. Brendt v. Brendt, 25 Misc. Rep. 359; Friede, 29 Misc. Rep. 187; cf. City Betts V. Betts, 9 App. Div. 210; Zar- of Brooklyn v. Seaman, 30 Misc. kowski V. Schroeder, 71 App. Div. at Rep. 507. p. 528. B2LyQi, V. Weeks, 29 Misc. Rep. 714, 49 Brendt v. Brendt, 25 Misc. Rep. 716, and cases there cited. 359- The Four Express Trusts. 387 estate in trust.^* But if there is no trust it is otherwise,^* unless fiome statute authorize it f^ for courts of law are primarily cog- nizant of titles to real property .°® 53 Dill V. Wisner, 88 N. Y. 153, 160; so Van Alst v. Hunter, s Johns. Ch. Mellen v. Mellen, 139 id. 210, 217; Matter of Keleman, 126 id. 73 ; Mc- Kinley v. Van Dusen, 76 App. Div. 200. 54 Id., supra. 55 See § 1866, Code Civ. Proc. ; Mellen v. Mellen, 139 N. Y. at p. 218. 148, iss; Colton, v. Ross, 2 Pai. 396; Brady v. McCosker, i N. Y. 214; Chipman v. Montgomery, 63 id. 221, 231; Weed V. Weed, 94 id. 243; An- derson V. Anderson, 112 id. 104; Cor- ley V. McElmeel, 149 id. pp. 236, 238. 388 Certain Devises, Powers. § yj. Certain devises to be deemed powers — A devise of real property to an executor or other trustee, for the purpose of sale or mortgage, where the trustee is not also empowered to receive the rents and profits, shall not vest any estate in him; but the trust shall be vailid as a power, and the real property shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power. Formerly i Revised Statutes, 729, section 56: § 56. A devise of lands to executors or other trustees, to be sold or mort- gaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees ; but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power.^'? Power of Sale. Before the Revised Statutes, executors did not acquire the inheritance simply by virtue of a devise of a power of sale.^* Sugden says, that " as far back as the reign of Henry the Sixth, it was laid down in a case in the Year Books, that if one devise that his executors shall sell his lands and die seised, his heir is in by descent and consequently the executors have only a power." ®^ A devise " in trust to sell " or " to sell lands," but not a devise " that executors shall sell lands " carried a fee.^" The old law determining when trustees took a fee and when a mere power of sale is well stated in the first edition of Mr. Jarman's Powell on Devises.®^ This section of the statute has been said to declare the pre-existing law.®^ Now as formerly executors may by implication take the inheritance or fee.^ Devise of a Power of Sale. A devise of a mere power of sale to an executor or testamentary trustee does not carry the fee to him un- less he is empowered to receive the rents.^ If he be empowered 5T Repealed, chap. 547, Laws of ^ Moncrief v. Ross, 50 N. Y. at p. 1896. 43S. 58 Vide infra, under § 79, The Real *3 Tucker v. Tucker, 5 N. Y. at p. Prop. Law. 416; Kinnier v. Rogers, 42 id. 351, 5»i Sugd. Pow. 129; Bradstreet v. 534; Marx v. McGlynn, 88 id. 357; Clarke, 12 Wend, at p. 663. The case Robert v. Corning, 89 id. 225, 237. referred to by Sugden is given by ^ Van Vechten v. Van Veghten, Digby Hist. Real Prop. (2d ed.), p. 8 Paige, 104; Germond v. Jones, 2 346, note 2. Hill, 569; Campbell v. Johnson, I 60 1 Sugd. Pow. 130. Sandf. Ch. 148; Thompson v. Car- *i Vol. I, p. 221. michael's Exrs., id. 387 ; Tucker v. Certain Devises, Powers. 389 to lease or receive the rents, he takes the legal title, and it makes no difference that the rents are not disposed of by the testator.*" A power of sale given to an executor for the benefit of legatees is a general power in trust. ^ But a merely discretionary power of sale in the executors for the purpose of distribution, even though connected with the right to receiv«e the rents and profits of land, does not vest them with the legal title.®'^ A devise to devisees by name is not inconsistent with the devise of a power of sale to executors.®* Although a power of sale is not in terms peremptory, if the general scheme of the will requires a conversion, it will operate as a conversion.®^ Where an absolute power of sale is given to executors, the addition of words limiting the execution of the power to a definite space of time will be held advisory and not to restrain or limit the power of disposition.™ Title Where Executors do not Take a Fee. Where the executors do not take the fee or inheritance, the title devolves by descent on the heirs of testator who take the rents and profits until the power of sale is executed,''^ unless the land is otherwise devised,^^ or the rents in equity belong to other distributees.''* Tucker, s N. Y. 408; Leonard v. Clift v. Moses, 116 id. 144; Skinner Burr, 18 id. 96, 108; Palmer v. Mar- v. Quinn, 43 id. 99; Mellen v. Mel- shall, 81 Hun, IS ; Kinnier v. Rogers, len, 139 id. 21D ; Taber v. Willetts, 42 N. Y. S3I, 534; Manice v. Manice, i App. Div. 285; Cruikshank v. 43 id. 303, 364; Vernon v. Vernon, Cruikshank, 39 Misc. Rep. 401. 53 id. 3SI, 358; Morse v. Morse, 85 69 Lent v. Howard, 89 N. Y. 169; id. S3; Lent v. Howard, 89 id. 169; Mausbach v. New, 58 App. Div. 191; Weeks v. Cornwall, 104 id. 325, 339; Russell v. Hilton, 37 Misc. Rep. 642, Clift V. Moses, 116 id. 144; Steinhardt 64s; Phoenix v. Trustees of Colum- V. Cunningham, 130 id. 292 ; 4 Kent bia College, 87 App. Div. 438, 445 ; et Coram. 322; Strauss v. Bendheim, 44 vide under § 280, infra; cf. Clift v. App. Div. 82, 8s; cf. Matter of Chase, Moses, 116 N. Y. 144. 40 Misc. Rep. 616. 70 Chanler v. N. Y. El. R. R. Co., 65 Hubbard v. Housley, 27 Misc. 34 App. Div. 30s, 307 ; Deegan v. Rep. 276 ; s. c, 43 App. Div. 129. Wade, 144 N. Y. 573 ; cf. Will ot 66 Manier v. Phelps, IS Abb. N. C. Butterfield, 133 id. 473. 123, 137 ; Russell v. Russell, 36 N. Y. ^i Lent v. Howard, 89 N. Y. 169 ; 581 ; § 79, The Real Prop. Law. Sweeney v. Warren, 127 id. 427; Mat- 67 Chamberlain v. Taylor, 105 N. Y. ter of S^jears, 89 Hun, 49. 185, 192 ; Palmer v. Marshall, 81 Hun, 72 Embury v. Sheldon, 68 N. Y. IS. 228. 68 Crittenden v. Fairchild, 41 N. Y. 73 Lent v. Howard, 89 N. Y. 169. 289 ; Kinnier v. Rogers, 42 id. 531 ; Note in this connection that lapsed 390 Powers of Sale. When Legatees may Extinguish Power. Where the power in trust is a power of sale, and is exclusively for the benefit of legatees en- titled to the fund, they may elect to take the real property instead and call for a conveyance. But all must concur.'^* Executors' Powers of Sale. As there is some obscurity, in the applica- tion of general principles, to this class of powers we may briefly outline the rules: Powers of sale over lands may be given by settlors, or testators, to three classes of persons: (i) Executors; (2) trustees; (3) grantees, devisees or legatees. As a general principle of the com- mon law, executors as such have not to do with real property, which descends if undevised, or passes to devisees, free of any power of the executors,''^ unless the will (a) gives them the estate; (b) or contains an express power of sale to the executors; (c) or requires them to take such a power by implication. (a) When a will expressly gives the inheritance or fee to the ex- ecutors, they of course take an estate by virtue of the will,''® and then a power of sale to them is merged in the fee, for a fee embraces all powers.'^' But the estate need not be expressly given, for they devises now go into the residuary ber v. Willets, i App. Div. 285 ; Rob- (Cruikshank v. Home for the Friend- erts v. Carey, 84 Hun, 328; Hurrell less, 113 N. Y. 337; Matter of Allen, v. Hurrell, 65 App. Div. 527; Parish 151 id. 243), and not as stated in v. Parish, 175 N. Y. i8i. Gerard's Titles (Last ed. 1896), 398; ^6 ggrgen v. Bennett, i Cai. Cas. i, Gallavan v. Gallavan, 31 Misc. Rep. 16; Barker v. Crosby, 32 Barb. 184, 282; s. c, 57 App. Div. 320; Moffett 187; Fowler v. Depau, 26 id. 224; V. Elmendorf, 152 N. Y. 485. But a Willcox v. Smith, id. 316, 337; lapsed legacy may go to specific lega- Jackson v. Schauber, 7 Cow. 187, tees (Matter of Botsford, zy App. 197 (reversed on another ground) ; Div. -JZ), or to grandchildren, 2 Russell v. Russell, 36 N. Y. 581, 583; R. S. 56, § 52; Matter of Hafner, Bogert v. Hertell, 4 Hill, at p. 512. 45 App. Div. 549. ™ I Jarman's Powell, Devises, 233 T4 McDonald v. O'Hara, 144 N. Y. seq., 245; i Williams' Executors, 451; 566; Mellen v. Mellen, 139 id. 210; i Sugden, Powers, 129 seq.; Siegel v. Greenland v. Waddell, 116 id. 234; Auger, 13 Abb. N. C. at p. 368; Dela- Prentice v. Jansen, 79 id. 478; Tra.sk field v. Barlow, 107 N. Y. S3S; Kin- v. Sturges, 170 id. 482, 497; Het- nier v. Rogers, 42 id. 531, 534; Marx zel V. Barber, 69 id. at p. II ; Reed v. v. McGlynn, 88 id. at p. 375. Van Wert, 12 Barb. 113; Salisbury " Hetzel v. Barber, 69 N. Y. i; V. Slade, 160 N. Y. 278; Trask v. Jennings v. Conboy, ^z id. 230. Sturges, 31 Misc. Rep. 195, 203 ; Ta- Powers of Sale. 391 may take a fee by implicationJ^ But under this section "jy of this act, a mere devise of a power to executors to sell or mortgage does not carry the fee to them, unless they are empowered to receive the rents ; for the trusts may be as well executed as a power.™ At com- mon law a devise of a power to executors who took no legal title was a common-law power,*' and not related to the Statute of Uses.^^ (b) A devise of an express power of sale to executors did not necessarily carry the fee to them even at common law ;^^ a principle now again stated in this section of this act.^^ But though it carry no title to the lands, an express power of sale to executors will, if for the benefit of any one else, now make them grantees of a power in trust to sell the land ;®* and meanwhile the inheritance if undevised descends by the ordinary rule, or goes as directed by the settlor.*® In this State a power of sale is generally, if not always, a power in trust.*^ If a power of sale is not imperative or for the benefit of any one, it ought not to be regarded as a pure power in trust, but as a mere discretionary or naked power f^ and this distinction may be important in questions involving the extinguishment of the power, or in the making of title by executors alone without the concurrence of devisees.** If, however, a discretionary power of sale to executors is executed, it becomes a quasi power in trust, if for the benefit of persons other than the donees of the power. T8 Leonard v. Burr, i8 N. Y. at p. nier v. Phelps, 15 Abb. N. C. 123, 108; Manice v. Manice, 43 id. at p. 137; Smith v. Bowen, ,35 N. Y. 83, 364; Byrnes v. Baer, 86 id. at p. 219; 89; Russell v. Russell, 36 id. 581; Robert v. Corning, 89 id. at p. 271 ; Willard, Eq. Juris. 487 ; Cutting v. Marx V. McGlynn, 88 id. at p. 375 ; Cutting, 86 N. Y. 522, 536. supra, and cases cited, note 63, p. 388, ^ Matter of Gantert, 136 N. Y. 106. Real Prop. Law. 86 Reed v. Underbill, 12 Barb. 113; ■^9 Tucker v. Tucker, 5 N. Y. 408 ; et vide infra, next paragraph, and vide authorities cited in note 64, *' Phoenix v. Trustees of Columbia p. 388. College, 87 App. Div. 438, 444; Fow- *•* Strahan c-n Property. 166 ; Dean ler v. Depau, 26 Barb. 224 ; Scholle V. Dean (1891), 3 Ch. 150. v. Scholle, 113 N. Y. 261, 27a; Mat- *i See under § no, infra. ter of Woodbury, 40 Misc. Rep. 143; *2 Page 388, supra; p. 402, infra; Lindo v. Murray, 91 Hun, 33s; I Williams, Executors, 451 ; Brad- Towler v. Towler, 142 N. Y. 371 ; street v. Clarke, 12 Wend, at p. 663. Little Falls Nat. Bank v. King, 53 83 Moncrief v. Ross, 50 N. Y. at App. Div. 541, 546. p. 435. 88 £. g.^ Emens v. St. John, 79 Hun, ** Vide note 66, p. 389, supra; Ma- 99. 392 Powers of Sale. (c) A power of sale need not be express, but may be given to executors by implication (and such an implied power may be mandatory) ; e. g., where a sale of the land is directed, and a dis- tribution of the proceeds is to be effected by them ;*" or where there is a devise of lands to executors to pay debts.®" Consequently it follows that the power to sell need not be in any particular language ; and such is the law.®^ But the power by implication must be reason- ably clear,®^ and, therefore, a power to executors to sell will not be implied from the mere fact that the lands are charged with the payment of debts.** So a power to sell does not imply a power to mortgage,** or a power to divide, a power of sale.*^ Where it is not stated in a will who shall sell, it is a reasonable construction that the power is to the executors.®^ Execution of the Powei. As a peremptory power of sale is a trust of a power or, as it is now designated, " a power in trust " it must be executed in the manner and for the purpose prescribed by the donor or grantor.*'^ But if a testamentory power is discretionary or not a trust but a mere naked power of sale,** the sufficiency of the frame of the power contained in a will is for a court of law, for ** I Williams, Executors, 451 ; ^ Potter v. Hodgman, 81 App. Div. Meakings v. Cromwell, s N. Y. 136 ; 233 ; Benedict v. Arnoux, 154 id. 715 ; Delafield v. Barlow, 107 id. S3S, .W; Albany Fire Ins. Co. v. Bay, 4 id. g; Heermans v. Robertson, 64 id. 332, Coutant v. Servoss, 3 Barb. 128; 342 ; Cahill v. Russell, 140 id. 402 ; Slirady v. Van Kirk, 77 App. Div. Salisbury v. Slade, 160 id. 278 ; Phil- 260. Cf. Willard Eq. Juris. 487. lips V. Davies, 92 id. 199, 203 ; Corse 95 Craig v. Craig, 3 Barb. Ch. ^(i. V. Chapman, 153 id. 466; Siefke v. 96 j Williams, Executors, 451; Da- Siefke, 34 Misc. Rep. yy; Dorland v. voue v. Fanning, 2 Johns. Ch. 252; Dorland, 2 Barb. 63; Mendell v. Lesser v. Lesser, 11 Misc. Rep. 223; Levis, 40 Misc. Rep. 271, 273. Meakings v. Cromwell, 5 N. Y. 136; 90 Matter of Gantert, 136 N. Y. Willard, Eq. Juris. 487. 106; Coogan V. Ockerhausen, 55 97 Hetzel v. Barber, 69 N. Y. i; Super. Ct. 286; s. c, 11 Civ. Pro. Benedict v. Arnoux, 7 App. Div. i Rep. 315 (revd., on one point, 154 N. Y. 715) ; 91 Cahill V. Russell, 140 N. Y. 142 ; but see article on Powers as to need- Reynolds v. Denslow, 80 Hun, 359. less formalities. 92 Paget V. Melcher, 42 App. Div. 98 £_ g_^ Fowler v. Depau, 26 Barb. 76; Hobson V. Hale, 95 N. Y. 588; 224; Lindo v. Murray, 91 Hun, 335; Murdock v. Kelly, 62 App. Div. 562. Emens v. St. John, 79 Hun, 99 ; Tow- 93 Matter of Will of Fc-x, 52 N. Y. ler v. Towler, 142 N. Y. 371 ; Walter 530; Dill v. Wisner, 88 id. 153, 158. v. Tompkins, 71 App. Div. 21. Powers of Sale. 393 courts of equity have no cognizance of the construction of wills unless they create trusts.^® Devolution of Power. As a rule it may be stated that a naked or discretionary power dies with the donee, but that if the power is mandatory and not discretionary it devolves on a successor to the trust.i Extinguishment of Powers. An auxiliary pwDwer of sale for the bene- fit of legatees or devisees may be extinguished by their election,^ or if for the purposes of an express trust, the power of sale is extinguished when such trust purpose ends.* But an independent, or naked, power of sale, disassociated with any express trust, may not be extinguished because a trust purpose in the same will is void or expires, or fails, but the power may continue on as the devise of a naked or discretionary power, presumably conferred for the general benefit of the estate and overriding the whole estate as it were.* Equitable Conversion. The execution of a naked power of sale by an executor does not operate as an equitable conversion of an infant's interest in the lands subject to the power. ^ It is beyond the scope of this treatise to discuss equitable conversion, which in spite of language is always a matter of intention.^ Charge on Lands. As it is established, that when debts are charged on lands by a solvent testator, or when executors have a power of sale to pay debts, no proceedings under the statute enabling resort to a sale of the real property of decedent is allowable, we may briefly next refer to that subject, before completing our review of execu- tors' powers of sale. The question whether debts or legacies are charged on land is of less importance than formerly, now that lands are made by statute ulterior assets for the payment of debts 99 Mellen v. Mellen, 139 N. Y. 210. 289; Kinnier v. Rogers, 42 id. 531; 1 Vide infra, p. 477. Strube v. Lentzback, 12 Misc. Rep. 2 Page 390, jK/jj-o, note 74. 216; Taber v. Willets, i App. Div. SBruner v. Meigs, 64 N. Y. 506; 285; Cussack v. Tweedy, 126 N. Y. Benedict v. Webb, 98 id. 460 ; Mellen 81 ; McCready v. Metropolitan Life V. Mellen, 139 id. 210, 220; Sweeney Ins. Co., 83 Hun, 526; affd., 148 N. Y. v. Warren, 127 id. 426 ; Harriot v. 761 ; Walter v. Tompkins, 71 App. Prime, 155 id. 5; Hurrell v. Hurrell, Div. 21. 65 App. Div. 527; Trask v. Sturges, » Matter of McKay, 37 Misc. Rep. 170 N. Y. 482. S90. 4 Lindo V. Murray, 91 Hun, 345 ; « Read v. Williams, 125 N. Y. 560. Crittenden v. Fairchild, 41 N. Y. See Index, " Conversion." 394 Charge on Lands. and may also be freely taken on execution.'^ But the question remains often of importance to creditors as avoiding cumbersome circuity, and to devisees or legatees always in the marshalling of assets* or in disputes with next of kin or legatees as to the primary fund for debts. By the common law of England, lands of a deceased person were not liable to answer his simple contract debts, and indeed the heir was only liable for the specialty debts of the ancestor when he had not aliened. So lands devised were not answerable at all unless charged.^ Again lands could not be sold by the common law, on execution for debt.-"* By Statute of England, 3 and 4 Wm. and Mary, c. 14,^^ a partial remedy was given to specialty creditors so as to reach lands in the hands of the heir and devisee jointly, but not severally ; and the statute was held to apply only to specialty debts.^^ Not until 1833 were lands of a deceased subjected by law to the payment of his simple contract debts in England.-'^ In America the common law was changed earlier. By act of the British parliament in 1732, lands in the colonies were made assets for the payment of all simple contract debts, in like manner as lands were in England for the payment of specialty debts. ^* But it seems to have remained the law of New York until 1774 that the heir was not liable for even the specialty debts of the ancestor after he had aliened the land which had descended, and that a devisee was not liable for the testator's debts; for, in 1774, the English act of 3 and 4 Wm. and Mary, c. 14, noticed above, was first specially re-enacted here.^^ After the American Revolution, the heir and devisee were made liable in all cases for all debts of the decedent, special or simple, to the extent of the lands received by them, but '■ Hogan V. Kavanaugh, 138 N. Y. n A. D. circ. 1692. 417, 422 ; Little Falls Nat. Bank v. 12 Note i Greenleaf's, Cruise, 78. King, S3 App. Div. 541, 544. 13 3 & 4 Wm. IV, chap. 104; Mat- * Harvey v. Kennedjr, 81 App. Div. ter of Gantert, 136 N. Y. 106, 112. 261; Matter of Paddock, id. 268; 1*5 Geo. II, chap. 7; 4 Kent Schmidt v. Limmer, 91 id. 360. Comm. 429. This act does not go to 8 Powell, Devises, 644 ; Jarman, the extent that Kent states. I re- Wills, chap. 46 ; Cruise, Dig. tit. I, member that the construction accorded § 56, note of Greenleaf; Read v. Pat- it was much complained of in the terson, 134 N. Y. 128, 131. colonies. 10 3 Black. Comm. 418. if Chap. 12, Laws of 1774. Charge on Lands. 395 only in case the personalty was insufficient.-'® By the same act a remedy was prescribed, and executors or administrators, if they had reason to apprehend that the personalty of a deceased was insuffi- cient to discharge his debts, might apply to the Probate Court or to a surrogate for an order to sell his real estate. ^^ This act was subsequently enlarged and re-enacted in the various revisions,^* and so passed into the Revised Statutes,^^ and thence into the last Code ;^* it consequently remains the basis of the modern law charging lands generally with the payment of decedent's debts. But the statute, as often amended, in no such case permits a resort to realty unless the personalty is insufficient,^^ for personalty, unless exonerated, is always the primary fund.^^ If the lands are charged with the pay- ment of debts by the will of a solvent testator, this statute does not apply,^^ as the charge creates a trust against the devisee in favor of the creditors, and the remedy is by bill to enforce the trust.2* So if there is a mandatory power of sale in a will to pay debts, the statute enabling the sale of lands for a deficiency of personalty has no relevancy;^ the creditor's remedy is to enforce the power in trust (which such a power is^®) by suit on the equity side of the 1® Chap. 27, Laws of 1786; Read v. Patterson, 134 N. Y. at p. 131 ; Fer- guson V. Broome, l Bradf. at p. 13; Kingsland v. Murray, 133 N. Y. at p. 174- 1'^ Chap. 27, Laws of 1876 ; i J. & V. 276. I81 K. & R. 317; I R- L- 444- i» 2 R. S. 100. 20 Code Civ. Proc, § 2749 seq. 21 Ferguson v. Broome, i Bradf. 10; Kingsland v. Murray, 133 N. Y. 170. 22 4 Kent Coram. 420 ; Magna- Charta, chap. 8; Cruise, Dig. tit. i, §§ S7, 59; Kingsland v. Murray, 133 N. Y. 170 Lupton V. Lupton, 2 Johns. Ch. 614; Hoes V. Van Hoesen, i Barb. Ch. 379; affd., i N. Y. 121; Matter of Goetz, 71 App, Div. 272, 27s ; Turner v. Mather, 86 id. 172. 23Subd. 3, 4, i 27S9, Code Civ. Proc. ; Youngs v. Youngs, 45 N. Y. 354; Little Falls Nat. Bank v. King, S3 App. Div. 541, 546. 2-* 2 R. S. 64, § 46 ; Story, Eq. Juris. § 124s ; Willard, Eq. Juris. 486 ; Hoyt V. Hoyt, 8s N. Y. at p. 142 ; Mc Corn v. McCorn, loo id. 511; Scott v. Steb- bins, 91 id. 605; Clift v. Moses, 116 id. at p. 152; Little Falls Nat. Bank V. King, S3 App. Div. S4i, 546; Conk- ling V. Weatherwax, 90 App. Div. 585. 25 Subd. 4, § 2759, Code Civ. Proc. ; Coogan V. Ockerhausen, 11 Civ. Proc. Rep. 315 ; Matter of Rosenfield, s Dem. 261 ; Holly y. Gibbons, 176 N. Y. S20, S26. 26 Smith V. Bowen, 3s N. Y. 83; Russell V. Russell, 36 id. 581; Ma- nier v. Phelps, 15 Abb. N. C. 123, 137; Kinnier v. Rogers, 42 N. Y. 531, 534- 396 Charge on Lands. court.^^ If the power of sale is not peremptory, but wholly dis- cretionary, then, if it be executed and the lands be sold under it,, the proceeds (while they may in a proper proceeding be reached as assets for the payment of debts) remain lands as to devisees.^* Where the power of sale does not operate as a conversion, or, in other words, is not peremptory, but a mere naked or discretionary power, and the executor or grantee refuses to exercise it for the benefit of creditors when the personalty is inadequate; or where the power is so limited by restrictions, consents of third persons, etc., as to be practically inoperative, and the personalty is inade- quate, it seems that the power may be disregarded ;^ and in such cases the remedy of the creditors may still be under the statute to obtain a sale of the land.^" Such an application to a surrogate may also be amended on motion.^^ Where some debts are charged on land and some are not so charged, and the personalty is inadequate to defray the debts not charged, creditors of the latter class may still resort to the statute and apply for a sale of the lands.^* When a testator proves in- solvent, the question of resorting to the statute for a sale of the lands and equalizing the dividend of all creditors arises, independ- ently of a charge on lands, in favor of particular creditors only.^^ Creditors become parties in invitum to proceedings to sell dece- dent's lands only for the purpose of proving their debts and not resisting sale.^* 27 Subd. 4, § 2759, Code Civ. Proc. ; so § 3759, subd. 4, Code Civ. Proc. ; McKay v. Green, 3 Johns. Ch. 56; Matter of Wood, 70 App. Div. 321; Matter of Rowley, 38 Misc. Rep. 622 : Matter of Gantert, 136 N. Y. at p. Holly V. Gibbons, 176 N. Y. 520; no; Redfield, Surrogates' Pr. 693, Matter of Gantert, 136 id. 106 ;cf. citing Matter of Hervy, 67 Hun, 13, Mellen v. Mellen, 139 id. 210. 21 N. Y. Supp. 685; Little Falls Nat. 28 Erwin v. Loper, 43 N. Y. 521 ; Bank v. King, S3 App. Div. S4i. S46. Matter oi City of Rochester, no id. ^^ Matter of Ibert, 48 App. Div. p. 167; Matter of McComb, 117 id. Sio- 378; Matter of Powers, 124 id. at ^'^lAttlt Falls Nat. Bank v. King, p. 368; Little Falls Nat. Bank v. 53 App. Div. S4i ; Matter of Rich- King, S3 App. Div. 541, 546; Matter mond, 62 id. 624; affd., 168 N. Y. of Tatum, 169 N. Y. 514- 38S- 29 Macy V. Sawyer, 66 How. Pr. ^^ Id. 381 ; Little Falls Nat. Bank v. King, 34 Matter of Campbell, 66 App. Div. S3 App. Div. 541, S46; Parker v. 478. Beer, 65 id. 598; affd., 173 N. Y. 332. Charge on Lands. 397 It is to be observed that a power of sale to pay debts will never be held discretionary, or dependent on the will of the grantee,^^ if another construction is possible without contravening the general purpose and scope of the will.*® Whether a peremptory power to sell at a fixed sum (practically unattainable) may be regarded as mandatory so as to defeat an i«pplication to resort to lands of decedent, or ineffectual and dis- regarded, may be questioned.^^ Having shown the reasons why chargfes on lands may be of importance to creditors or devisees especially, we may next discuss the more general principles employed by courts in determining whether or not a settlement or will contains a charge on lands. It is now settled that a mere direction to pay debts does not make them a charge on land.^® So a discretionary power of sale to carry out the provisions of a will does not charge legacies on land specifically^ devised.^® In a proper case, an intent to make debts or legacies a charge on land may be implied from the whole will, as well as be express.*" But in such a case*' the intent must be clear, as the personalty is the primary fund for the payment of debts,*^ or legacies.*^ A mere residuary clause following after specific legacies does not 3^ § 137, The Real Prop. Law. nolds v. Reynolds' Exr., i6 N. Y. 36 Matter of Gantert, 136 N. Y. at 257, 259 ; Hoyt v. Hoyt, 85 id. 142 ; p. no. McCorn v. McCorn, lOO id. 511; ^ See the power of sale in Koezly Stewart v. Crysler, 52 App. Div. 597 ; V. Koezly, 31 Misc. Rep. 397. Dunham v. Deraismes, 165 N. Y. 65 ; 38 Lupton V. Lupton, 2 Johns. Ch. Wellbrook v. Otten, 35 Misc. Rep. 614, 625; Matter of Will of Fox, 52 459; McManus v. McManus, 86 App. N. Y. 530; Matter of City of Roches- Div. 240. ter, no id. 159, 165; Matter of Pow- « Qjft y. Moses, 116 N. Y. 144, ers, 124 id. 361 ; Matter of Bingham, 155 ; Matter of City of Rochester, 127 id. 296, 314; Morris v. Sickly, 133 no id. 159; Davidson v. Rightmyer, id. 456, 458; cf. Coogan v. Ocker- 38 Misc. Rep. 493; Lodiger v. Can- hausen, 11 Civ. Proc. Rep. 315. field, 70 App. Div. 596. 39 Carberry v. Ennis, 72 App. Div. *2 j Roper & White, Legacies, 671, 489 ; Harvey v. Kennedy, 81 App. et supra, p. 39s ; Harvey v. Kennedy, Div. 261 ; Schmidt v. Limmer, 91 id. 81 App. Div. 261 ; Matter of Pad- 360; cf. Matter of Plumber, 38 Misc. dock, id. 268. Rep. 536. *3 Schmidt v. Limmer, gi App. Div. *o Harris v. Fly, 7 Paige, 421 ; Rey- 360. 398 Charge on Lanijs. in itself make the legacies a charge on land in case there is a de- ficiency of personalty.** In England it is the rule, that where the real estate and the per- sonal estate are by the residuary clausie blended into one fund or mass, legacies are chargeable on the real estate. They are not then primarily chargeable on the personalty, but on both realty and per- sonalty proportionably.*^ How far this rule prevails in this State is regarded as open,*' and to be determined rather by the particular circumstances of each case than by the hard and fast English rule,*'' and for this purpose the testator's extrinsic circumstances will be regarded.** Three years' limit. Section 2750, Code Civil Procedure, was in- tended to fix a time limit after which heirs, devisees, and bona Ude purchasers of land would be protected in their estates.*' After the filing of the petition to sell the lands, a delay of many years in doing more will not, however, be' regarded as a waiver.^" **Luptcm V. Lupton, 2 Johns. Ch. Wright, 112 id. 129; Briggs v. Car- 614, 625; Myers v. Eddy, 47 Barb, rol, 117 id. 288. 263, 267; Matter of City of Rochester, *« Brill v. Wright, 112 N. Y. 129; no N. Y. 159; Bevan v. Cooper, 72 cf. Morris v. Sickly, 133 id. 456; id. 317; Brill v. Wright, 112 id. 129. Lyons v. Steinhardt, 37 Misc. Rep. *5 Reynolds v. Reynolds' Exr., 16 628. N. Y. at p. 261. 49 siocum v. English, 62 N. Y. 46 Myers v. Eddy, 47 Barb. 263; 494; White v. Kane, 7 N. Y. Civ. Bevan v. Cooper, 72 N. Y. 317, 322; Proc. Rep. 267, 271. And see § 1538, Hoyt V. Hoyt, 85 id. at p. 149. Code Civ. Proc, and Wood v. Hub- *7 Scott V. Stebbins, 91 N. Y. 605 1 bard, 29 App. Div. 166, 169, as to Wiltsie V. Shaw, 100 id. 191, 196; partition. McCorn v. McCorn, id. 511; Brill v. 5<> Matter of Van Vleck, 32 Misc. Rep. 419. Creditors' Right to Surplus Trust Income. 399 § 78. Surplus income of trust property liable to creditors. — Where a trust is created to receive the rents and profits of real property, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum necessary for the education and support of the beneficiary, shall be liable to the claims of his creditors in the same man- ner as other personal property, which cannot be reached by execution. Formerly i Revised Statutes, 729, section 57: § 57. Where a trust is created to receive the rents and profits of lands, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the education and sup- port of the person for whose benefit the trust is created, shall be liable, in equity, to the claims of the creditors of such person, in the same manner as other personal property, which cannot be reached by an execution at law."! Comment on this Section. Prior to the Revised Statutes, trusts could not be created by third persons with a proviso that the interest of cestui que trust should not be alienated, unless it were a trust for a married woman.®^ The history of restraints on alienation of trust estates will be noticed under the appropriate and subsequent section.®^ That section was, in all probability, originally framed at a time when the revisers intended to limit express trusts to apply income to the instances of minors, femes covert, lunatics, and spendthrifts f * for a general restraint on the alienation of all trusts of this character was unknown in the best days of equity jurisdic- tion.^ When the Revised Statutes imposed a general restraint on alienation^® by certain cestuis que trustent, the section now under consideration^'' was deemed necessary to prevent unjust appropria- tions of income from trust estates.^® But notwithstanding the fact BlReoealed, chap. 547, Laws of son, 11 id. at p. 140; Raymond v. 1896. Harris, 84 App. Div. 546. ^^ Supra, pp. 379, 380; Lewin, 53 xhe Real Prop. Law, § 83. Trusts (Last ed.), 98, 693, 781 ; Bryan ^4 Supra, pp. 376, 377- V. Knickerbocker, I Barb. Ch. 409, 55 Lewin, Trusts, 98; see argument 412; Graff V. Bonnett, 31 N. Y. 9, in Noyes v. Blakeman, 6 N. Y. at pp. 25; Schenck v. Barnes, 25 App. Div. 574, 575, 576. IS3, ISS; 156 N. Y. 316; Rome Ex- 56 j r. s. 730, § 3; The Real Prop, change Bank v. Eames, 4 Abb. Ct. Law, § 83. App. Dec. 83, 99; Hallett v. Thorap- 57 § 78, supra; i R. S. 728, § 57. son, 5 Paige, 586 ; De Graw v. Cla- 58 ciute v. Bool, 8 Paige, at p. 87. 400 Creditors' Right to Surplus Trust Income. that there was, before the Revised Statutes, no restraint on the power of alienation by cestuis (which fact frequently led to the loss of the corpus of an executed trust), estates could then be limited in trust for the benefit of persons until they became insolvent or bankrupt and then remainder over, in the nature of a shifting use f^ and this class of limitations remains still valid.*" Effect of this Section. The effect of section 78, from the point of view of creditors, is to limit all trusts, created by third persons, to receive and pay over rents, or apply them to the use of another, to trusts for actual education and suitable maintenance®^ — a principle eminently proper in view of the unlimited adoption by the statute of a restraint on the power of alienation.*^ In ordinary trusts " to receive and apply to the use of, etc., etc.," the trustee has no dis- cretion and cannot withhold from the beneficiary the net income of the estate.*^ In all cases of this character, the court alone is the final arbiter, therefore, of the beneficiaries' necessities ; and the adjudged surplus may be reached by a creditor's bill,** after the return of an execution unsatisfied.® It cannot be reached by pro- ceedings supplementary to an execution.** The question how far a court of equity has power to reach equitable assets independent of statute has been much debated.*''^ fi^Lewin, Trusts (Last ed.), loi, Rep. 12; Raymond v. Harris, 84 App. and cases cited. Div. 546; Rider v. Mason, 4 Sandf. «OBramhalI v. Ferris, 14 N. Y. 41. Ch. 351; s. c, 2 Barb. Ch. 79; Wil- *i Including maintenance of the Hams v. Thorn, 70 N. Y. 270, 273 ; beneficiary's family. Bunnell v. Gard- Tolles v. Wood, 99 id. 616 ; Wetmore ner, 4 App. Div. 321 ; Andrews v. v. Wetmore, 149 id. 520 ; Schenck v. Whitney, 82 Hun, 117; Tolles v. Barnes, 25 App. Div. 153, 156 N. Y. Wood, 99 N. Y. 616; Estate of 316; Miller v. Miller, i Abb. N. C. Hoyt, 12 Civ. Proc. Rep. 208, 219; 30; Bunnell v. Gardner, 4 App. Div. Schenck v. Barnes, 25 App. Div. 153; 321; cf. Graflf v. Bonnett, 31 N. Y. 156 N. Y. 316. Cf. Palmer v. Hallock, 9 ; Locke v. Mabbett, 2 Keyes, 457 ; 94 App. Div. 485; Kelsey v. Webb, as to personalty, Code Civ. Proc, id. S7I. §§ 1871, 1879, 2463; see a valuable 62 Id., supra. note to 16 Abb. N. C. at p. 20, seq. «3Clute V. Bool, 8 Paige, 83, 88; 65 Williams v. Thorn, 70 N. Y. McEvoy V. Appleby, 27 Hun, 44. 270; Dittmar v. Gould, 60 App. Div. «* §§ 1871-1879, Code Civ. Proc. ; 94 ; Sherman v. Tucker, id. 127. First National Bank v. Mortimer, 28 66 Matter of Seymour, 76 App. Div. Misc. Rep. 686; Sherman v. Skuse, 300, 301. 45 App. Div. 335 ; affd., 166 N. Y. ^^ 2 R. S. 174, §§ 38, 391 § 1871, 345 ; Matter of Temple, 36 Misc. Rep. Code Civ. Proc. ; Story, Eq. Juris., 620; McGlynn v. McGlynn, 37 Misc. §§ 366, 367, 368; Harper v. Clayton, Creditors' Right to Surplus Trust Income. 401 Assignees in Bankruptcy. It lias been held and denied that receiv- ers and assignees in bankruptcy may reach the surplus income of cestuis que trustent, in trusts under the third subdivision of section 76 of this act, and that it passes under an assignment in bankruptcy. Certainly, in justice to creditors, it should so pass.®® When Trust Created by the Beneficiary. When a trust is created by the beneficiary himself for his own benefit solely, the trust is not regulated by this section, but is made void by statute as against creditors, existing or subsequent, of the settlor.®* Yet it is good as an express trust as to other persons.™ Trusts for the benefit of the settlor himself may easily be executed into legal estates by virtue of this statute.''^ But the provisions of the statute, avoiding such trusts as to creditors, can have no effect on the limitation of a remainder to a third person if the settlor was solvent when the settlement was made, for the remainder is not for the benefit of the settlor. 35 Law Rep. Annot. 211; 4 Kent Barnes, 25 App. Div. 153; Schenckv. Comm. 61; Tompkins v. Fonda, 4 Barnes, 156 N. Y. 316; § 23, chap. Paige, 448; Stewart v. McMartin, S 417, Laws of 1897; Hadden v. Spader, Barb. 438, 446 ; Hadden v. Spader, 20 20 Johns. 554 ; cf. Wainwright v. Johns. 554; Dittman v. Gould, 60 Low, 132 N. Y. 313. App. Div. 94, 97. TOGilman v. McArdle, 99 N. Y. 451, 68 In re Baudoine, 76 Fed. 556, 457 ; Townshend v. Frommer, 125 id. modified in C. C. App. ; Brown v. 446 ; Raymond v. Harris, 84 App. Barker, 68 App. Div. 592; sed cf. Div. 546. Cf. Wainwright v. Low, Butler V. Baudoine, 84 id. 215. 132 N. Y. 313. 69 2 R. S. 135, § I ; Young v. Heer- '^i Supra, The Real Prop. Law, § 72, mans, 66 N. Y. 374; Spies v. Boyd, i and see note to 16 Abb. N. C. 23. E. D. Smith, 445, 448; Schenck v. 26 402 When Trust Valid as a Power. § 79. When an authorized trust is valid as a power — Where an express trust relating to real property is created for any purpose not specified in the preceding sections of this article, no estate shall vest in the trustees ; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions of this chapter. Where a trust is valid as a power, the real property to which the trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power. Formerly i Revised Statutes, 729, sections 58 and 59: § 58. Where an express trust shall be created, for any purpose not enu- merated in the preceding sections, no estate shall vest in the trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers, contained in the third Article of this Title.'^l'' § 59. In every case where the trust shall be valid as a power, the lands tc which the trust relates, shall remain in, or descend to the persons otherwise entitled, subject to the execution of the trust as a power.^s Comment on Section 79. Farther back than the time of Littleton, it was well settled that a power of sale for a pious use could over- ride an inheritance, and be vested -in others than the heirs taking the land by descent.'^* So Coke distinctly states that a power and an inheritance in land may be separate ; or, in other words, that a power of sale may be in one person and the legal title to the estate in an- other.''* Sir Edward Sugden points out that this power was sepa- rated from the legal title as early as the reign of King Henry VI (A. D. I422-I46i).''s After the Statute of Wills^® executors fre- quently took a power of sale without the inheritance which went to the heirs.''' Where the executors took a fee, the trust might cover the power, for a normal fee embraces all powers.''^ But the distinc- ■fi" Repealed, chap. 547, Laws cf ''^ 32 Hen. VIII, chap, i ; 34 & 35 1896. id., chap. 5. '2 Repealed, chap. 547, Laws of 77 gee cases cited, i Sugd. Pow. 1896. 130, and Hargrave's note to Co. Litt. ''^ Litt., § 169; et vide supra, p. 113a. 388, under § 77; cf. Litt., § 383. « Hetzel v. Barber, 69 N. Y. i, 7; ''^Co. Litt. 113a, and Mr. Har- Jennings v. Conboy, 73 id. 230; Fay grave's note 146, Id. v. Taylor, 31 Misc. Rep. 32. TB I Powers, 129. Powers in Trust. 403 tion between a power strictissimi juris and a trust, or a power in trust, was formerly this, says Sugden : " Powers are never impera- tive; * * * trusts are always imperative."''® Thus, before the Revised Statutes, the distinction between powers in trust and express trusts where the trustee had the inheritance, was well established, and there might be a trust in lands without an estate at law.*° The Revised Statutes simply extended the application of this distinction, and embraced in powers in trusts all trusts except those mentioned in its four express trust purposes.®^ Powers in Trust. It has been intimated that the original revisers committed an error in their attempt to enumerate all the proper occa- sions for creating a trust estate.®^ But this enumeration in the Revised Statutes of the four express trust purposes has not deprived owners of property of the power of impressing a great variety of active trusts on their estates ; such trusts are now powers in trust and not trusts under the 76th section of this act.*^ The original revisers saw no objection to the continuation of trusts as powers. They so distinctly state in their notes to the article on Powers. Thus limitations of active trusts to partition are 'not express trusts, but valid as powers in trust;** so limitations to appraise, divide shares, sell or convey, are valid as powers in trust.® A power of ^*2 Powers, 158; Towler V. Towler, 239; Townshend v. Frommer, 125 id. 142 N. Y. 371, 375. 446, 457; Kernochan v. Marshall, 165 80 See Jarman, Devises, chap. id. 472, 479 ; Murray v. Miller, 178 XXXV, p. 204, seq., "Estates of id. 316; Reynolds v. Denslow, 80 Trustees," with extensive citations of Hun, 359; Bennett v. Rosenthal, 11 the old cases. Daly, 91. 8^ § 76, supra. See note of Re- ** Irving v. De Kay, 9 Paige, 521 ; visers with i R. S. 729, § 58. De Kay v. Irving, 5 Den. 646, 649; 82 Downing v. Marshall, 23 N. Y. Palmer v. Marshall, 81 Hun, 15 ; at p. 380. Manice v. Manice, 43 N. Y. 303, 364; 83 Farmers' Loan ■ & Trust Co. v. Konvalinka v. Schlegel, 104 id. 125, Carroll, 5 Barb. 613, 652; Selden v. 130; Henderson v. Henderson, 113 Vermilya, 3 N. Y. 525, 536; Belmont id. I. V. O'Brien, 12 id. 394, 403 ; Downing 85 Townshend v. Frommer, 125 N. V. Marshall, 23 id. 366; Oilman v. Y. 446, 459; Konvalinka v. Schlegel, Reddington, 24 id. 9, 15 ; Delaney v. 104 id. 125, 130 ; Delaney v. McCor- McCormack, 88 id. 174, 181 ; Konva- mack, 85 id. 174, 181 ; Manice v. linka v. Schlegel, 104 id. 125, 130; Manice, 43 id. 303, 364; Oilman v. Chamberlain v. Taylor, 105 id. 185, Reddington, 24 id. 9, 15; cf. Chapl. 192; Holly V. Hirsch, 135 id. 590; Express Trusts & Pow., § 552. Booth v. Baptist Church, 126 id. 215, 404 Powers in Trust. sale for the benefit of creditors or legatees is a power in trust.** But a trust which is merely passive cannot be validated as a power in trust ; such a trust is annihilated by force of the existing Statute of Uses as revised.®^ Defective Express Trusts not Valid as Powers. A trust purpose, speci- fied in section 76 of this act, cannot be validated as a power in trust because it fails as an express trust.^^ There must be a definite bene- ficiary entitled to enforce a trust, when not a charitable use, whether the trust is under the 76th section of this act or is under this section " a power in trust."*^ So the use must in both cases be sufficiently definite to be capable of judicial enforcement^" without resort to the doctrine of cy pres, unless it is a charitable trust.^^ No Particular Language Wecessasy to Create a Power in Trust. No par- ticular language is necessary to create a power in trust. Any lan- guage indicative of an intention to create it is sufficient.®^ But an intention to create an express trust will not be inferred where the purpose may be accomplished as a power.®^ 88 Manier v. Phelps, 15 Abb. N. C. Carroll, S Barb. 613 ; Sweeney v. War- 123, 137; Russell V. Russell, 36 N. Y. 581 ; Smith v. Bowen, 33 id. 83 ; Kin- nier v. Rogers, 42 id. 531, 534; Mat- ter of Gantert, 136 id. 106. 8'^ Townshend v. Fromraer, 125 N. Y. 446, 457; Adams v. Perry, 43 id. 487, 496; Verdin v. Slocum, 71 id. 345 ; McComb v. Title Guarantee & Trust Co., 36 Misc. Rep. 370; Wain- right V. Low, 132 N. Y. 313 ; Matter of Stewart, 88 App. Div. 23, 30; Murray v. Miller, 178 N. Y. 316. ** Hawley v. James, 16 Wend. 61; Arnold v. Gilbert, 3 Sandf. Ch. 563; Lang V. Ropke, S Sandf. 363, 372; Matter of Hall, 24 Hun, 153 ; Garvey ren, 127 N. Y. 426; Tilden v. Green, 130 id. 29, 64, unless the power in trust is for a charitable, religious, pious or educational use, when, see chap. 701, Laws of 1893, and § 93, The Real Prop. Law. 90 Owen V. Miss. Soc. M. E. Church, 14 N. Y. 380, 406 ; Beekman v. Bonsor, 23 id. 298; Bascom v. Albertson, 34 id. 584, 592 ; Prichard v. Smith, 95 id. 76, 81. M Adams v. Perry, 43 N. Y. at p. 498; Holland v. Alcock, 108 id. 312, 330; Cottman v. Grace, 112 id. 299, 306; Tilden v. Green, 130 id. 29. 92 Reynolds v. Denslow, 80 Hun, V. McDevitt, 72 N. Y. 556, 562; 359; Leggett v. Perkins, 2 N. Y. Staples V. Hawes, 39 App. Div. 548; 297; Wright v. Douglass, 7 id. 564; Lewis V. Howe, 64 id. 572 ; McComb Dillaye v. Greenough, 45 id. 438, 445 ; V. Title Guarantee & Trust Co., 36 Vernon v. Vernon, S3 id. 351; Heer- Misc. Rep. 370 ; Murray v. Miller, mans v. Robertson, 64 id. 332 ; Moore 178 N. Y. 316, 323; et vide infra sub v. Hegeman, 72 id. 376, 384; Donovan § 117, The Real Prop. Law; cf. Kon- v. Van De Mark, 78 id. 244; Morse v. valinka v. Schlegel, 104 N. Y. at p. Morse, 85 id. 53. 130- ®^ Tucker v. Tucker, 5 N. Y. 408 ; 89 Farmers' Loan & Trust Co. v. Heermans v. Robertson. 6a id. 332 ; Powers in Trust. 405 Power in Trust is Imperative. A power in trust is as peremptory and imperative as an express trust,®* excepting where it is made to depend wholly on the will of the grantor ;*'' and in that case it is not unlike some kinds of honorary®^ or discretionary trusts. If a limitation in trust is so indefinite as not to be capable of enforce- ment without superseding the discretion of a trustee, it is not good."^ Trustee of a Power in Trust Cannot Contravene Trust. A trustee of a power in trust cannot commit a breach of trust, or alienate the property in contravention of the trust,®^ any more than can a trus- tee of an express trust."" Thus the grantee of a trust power cannot appoint to grandchildren when children are specified as the objects of the power ;^ and such was the old law before the Revised Statutes.^ Devolution of Trust Powers. Upon the death of a sole surviving trustee of a power in trust the trust devolves on the Supreme Court, under the 91st section of this act,* as it is applicable to powers in trust.* What Trust Purposes are Lawful as Powers in Trust. What trust pur- poses are lawful as powers in trust, the statute does not attempt to specify,^ except negatively by excluding them from the 76th section of this act. They were the trusts lawful by the common law, and not now included in the "four express trust purposes." Henderson v. Henderson, 113 id. r, 254; Arnoux v. Phyfe, 6 App. Div. II ; Robert v. Corning, 89 id. at p. 605; Benedict v. Arnoux, 7 id. i; 237; Steinhardt v. Cunningham, 130 revd., 154 N. Y. 715 ; Gardner v. Dem- id. at p. 300. binsky, 52 App. Div. 473. And see 9* § 137, The Real Prop. Law ; i R. under § 152, The Real Prop. Law. S. 734, § 96 ; Smith v. Floyd, 140 N. ^ § 85, The Real Prop. Law. Y. 337; Downing v. Marshall, 23 id. 1 Austin v. Oakes, 117 N. Y. 577; at p. 380; Farmers' Loan & Trust Co. Townsend v. Townsend, 27 Misc. Rep. v. Carroll, 5 Barb, at p. 653. 268. ^ § 137, The Real Prop. Law. ^ j Chance, Powers, § 990; 2 Sug- 88 5 Harv. Law Rev. 389-402. den, Powers, 253. ^ Phillips V. Phillips, 112 N. Y. 197, ^ Vide infra. 204 ; Lawrence v. Cook, 104 id. 632 ; * Vide § 162, infra. Collister v. Fassitt, 7 App. Div. 20; ^ Downing v. Marshall, 23 N. Y. at Foose V. Whitmore, 82 N. Y. 405; p. 380; Belmont v. O'Brien, 12 id. Tilden v. Green, 130 id. 29, 63 ; Lewin, at p. 403 ; Read v. Williams, 125 id Trusts, 171 seq. at p. 569; Murray v. Miller, 178 id. ®* Russell V. Russell, 36 N. Y. 581, 316, 323. 584; McPherson v. Smith, 49 Hun, 406 Powers in Trust. Beneficiaries of a Power in Trust. As stated before, in order that a trust may be valid as a power in trust there must be a definite and certain beneficiary entitled to come into equity and enforce the trust,'' unless the limitation is to a charitable, religious, educational or benevolent use, when it falls under a recent and more liberal law.'' Characteristics of Trusts and "Powers in Trust." With the single ex- ception of the devolution of the legal title and the right to undis- posed of rents and profits which follow the legal title, trusts, whether called " express trusts '' under the 76th section of this act, or called '■ powers in trusts " under this section, do not materially differ in their trust features.^ Courts of equity have cognizance of both kinds of trusts because they are trusts and for no other reason.® So, when the purposes for which the trust power was created cease, or are completed, the power is extinguished.^" Legal Title. As a rule the legal title to lands overridden by a power in trust, follows the usual course of devolution; i e., it may descend to heirs or pass as directed by the settlor.^'^ 8 Tilden v. Green, 130 N. Y. 29; Dill v. Wisner, 88 id. 153, 160; Haight Prichard v. Smith, 95 id. 76 ; Matter v. Brisbane, 96 id. 132. of O'Hara, id. at p. 418; Read v. i" Bruner v. Meigs, 64 N. Y. 506; Williams, 125 id. 560 ; Murray v. Mil- Cussack v. Tweedy, 126 id. 81 ; Har- ler, 178 id. 316, 323. riot v. Prime, 155 id. 5 ; Hurrell v. ■^ Chap. 701, Laws of 1893; § 93, The Hurrell, 65 App. Div. 527, et vide Real Prop. Law. infra, under § 137, The Real Prop. * Brandow v. Brandow, 66 N. Y. Law. 401, 406 ; Cruikshank v. Home for the " § 79, The Real Prop. Law ; cf. Friendless, 43 id. at p. 351; Read v. Lewis v. Howe, 64 App. Div. $72; Williams, 125 id. at p. 568. Matter of Spears, 89 Hun, 49. 9 Mellen v. Mellen, 139 N. Y. 210; Trustees' Estate. 407 § 80. Trustee of express trust to have whole estate. — Except as otherwise prescribed in this chapter, an express trust, vahd as such in its creation, shall vest in the trustee the legal estate, subject only to the execution of the trust, and the beneficiary shall not take any legal estate or interest in the property, but may enforce the performance of the trust. Formerly i Revised Statutes, 729, section 60: § 60. Every express trust, valid, as such, in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The persons for whose benefit the trust is created, shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.12 The Old Law. Prior to the Revised Statutes, a trustee of an ex- press trust^^ acquired the legal title and seisin of the estate. He it was who was the recognized tenant according to the old common or feudal law, which always required that there should be a tenant of the freehold, and that the seisin should not be in abeyance.^* The trustees' estate might be a chattel interest, that is, an estate for years,^^ or it might be a freehold estate.^^ The freehold, again, might be either in fee^^ or an estate pur autre vie}^ But if the es- tate was limited by a deed to the use of the trustees and their heirs, they took the legal estate in fee independently of the evidence of intention supplied by the nature of the trust.^^ If the estate of trustees was created by will it was commensurate with the trusts.** The cestui que trust or beneficiary, on the other hand, had no estate recognized by the common law.^^ But as equity jurisdiction grew, that which was neither jus ad rem nor jus in re^^ became an " es- tate " in equity, with most of the properties and characteristics of a 12 Repealed, chap. 547, Laws of 652 ; Fisher v. Fields, 10 Johns. 495 ; 1896. Greason v. Kettletas, 17 N. Y. 491. 13 An express trust was then one i^ Doe ex dem. White v. Simpson, s clearly expressed by the author East, 162; Challis, 115. thereof, or one fairly inferable from a 1^ 2 Jarm. Wills, 214 ; Lewin, Trusts, written document. Smith, Eq. 99. 102. 1* Supra, pp. 24, 31, 279, 288. 20 J Perry, Trusts, § 319, and cases 15 Doe ex dem. White v. Simpson, there cited. 5 East, 162. ^ Supra, p. 368; Mr. Butler's note 16 2 Jarm. Wills, chap. XXXV. 249, Co. Litt 290; Gilb. Uses & 1'? Harton v. Harton, 7 Durn. & E. Trusts, 2. 22 Supra, p. 3S3- 408 Trustees' Estate. legal estate.^* The equitable estate might be in fee or in tail.^* If in tail, it might be barred by a tenant in taiP by means of a com- mon recovery.^^ Equitable estates were susceptible of the same limitations as legal estates. The husband had curtesy in the wife's trust estate though dower by some anomaly was excluded.^'' The equitable estate might be an estate for life or a remainder in fee; but equitable remainders were subject to the rule against perpetui- ties (although legal remainders were not),^ as equitable remainders could not be barred or defeated in the same way as legal remain- ders.^® Comment on this Section. The Commissioners of Statutory Revision m redrafting this section^' seem to have missed the entire point of the prototype.^^ The object of the Revised Statutes was to abolish " equitable estates," not " legal estates " of cestuis que trustent. Not- withstanding the language of the new section is defective, courts will hardly revive the former doctrine of equitable estates, fees, etc., indicated above. The Eevised Statutes. The Revised Statutes put an end to equi- table estates in lands. This legislation was in this particular the first attempt to modify the antinomy of the old judicial system, with its distinct estates in law and estates in equity. Henceforth cestui que trust had no estate whatever.^^ The whole nature of the beneficiary's right had undergone a change ; it was made inalien- able in some cases,^^ and it was cut down in duration to the life of 23 1 Sand. Uses & Trusts, 122 ; 577 ; L'Amoureux v. Van Rensselaer, Lewin, Trusts (ist ed.), 481; 2 I Barb. Ch. 37; Degraw v. Clason, 11 Spence, Eq. Juris., chap. X; Strahan Paige, 140; Calkins v. Long, 22 Barb, on Property, 155. 97 ; Darling v. Rogers, 22 Wend. 483 ; 24 I Sand. Uses & Trusts, 127. Noyes v. Blakeman, 6 N. Y. 567, 579 ; 26 Lewin, Trusts (ist ed.), 503. Selden v. Vermilya, 3 id. 525; Ring v. 26 Mr. O'Conor in Wright v. Miller. McCoun, 10 id. 268, 271 ; Oilman v. 8 N. Y. 16, 17; Brydges v. Brydges, 3 Reddington, 24 id. 9, 15; Marvin Ves. 120, 126 ; cited, 18 id. at p. 418. v. Smith, 46 id. 571 ; Duvall v. Eng. 27 I Sand. Uses & Trusts, 293 ; Stra- Lutheran Church, 53 id. 500 ; People han on Property, 157, 158. ex rel. Short v. Bacon, 99 id. 275 ; ^^ Supra, pp. 229, 237. Crooke v. County of Kings, 97 id. 29 Abbiss V. Burney, L. R. 17 Ch. D. 421, 446; Van Cott v. Prentice, 104 211. id. 45, 53; Bindrim v. Ullrich, 64 App. 30 § 80, supra. Div. 444, 447. 31 I R. S. 720, § 60. " 33 § 83, The Real Prop. Law, et su- 32 Briggs V. Davis, 21 N. Y. 574, pra, pp. 368, 369. Trustees' Estate. 409 the beneficiary when the trust was permanent.^* This section (80) of the statute is to be read, however, in connection with several others in pari materia.^ The first provides for the limitation of estates by way of remainder.^^ The second provides for the rever- sion so as not to deprive the grantor of it by implication.^^ The last states an old principle of construction in respect of trust es- tates, viz., that the estate of the trustee shall cease when the pur- poses of the trust no longer require it to exist.^* Does Trustee of an Express Trust Now Take a Fee or an Estate Pur Autre Vie? Was it intended by the original revisers that trustees of the express trusts should take a fee simple absolute, particularly under the 3d subdivision of section 76 of this act? The Revised Statutes declared that they are invested with the whole estate. The present revision says the "legal estate." In view of the peculiar legisla- tion on this subject the question arises particularly under the 34th section of this act,^® whether the trustee now takes a base fee, or an estate pur autre vie. Elsewhere the more familiar cases on this point have been collated, and the opinion expressed that the rationale of the present legislation requires the conclusion that a trustee of an express trust, mentioned in the 76th section of this act, now takes a fee simple absolute for the purposes of alienation under the 1st and 2d subdivisions of this section, and under subdivision 3 a base or qualified fee and not an estate pur autre vie.*-" The language of section 80 of this act makes it not so clear as its prototype,*^ that every express trust shall vest the whole fee in the trustee. But there was no intent to change the law on this point. *^ The theory of the one durable trust under the 76th section of this act was that the trust was for persons incapable of the handling and the disposing of an estate ;*^ therefore, the interest of the bene- 3* § 76, The Real Prop. Law. v. Bunce, 23 App. Div. 289. For other 35 §§ 81, 82, 89, The Real Prop. Law. cases on this point see supra, pp. 27.3, 30 § 81, infra. 274, under § 34, The Real Prop. Law. 3T § 82, infra. 41 1 R. S. 729, § 60. 38 § 89, infra. *2 Report of Commissioners of -Stat- es See, also, § 123, infra. utory Revision with section 80 of this *" Dj'eing & Printing Estab. v. De article ; Northam v. Dutchess Co. Westenberg, Daily Reg., Feb. 19, Mut. Ins. Co., 166 N. Y. 319, 322; cf. 1886; affd., above; cf. IMatter of Mc- Crooke v. County of Kings, 97 N. Y. Caffrey, 50 Hun, 371 ; Gomez v. Go- at p. 446. mez, 147 N. Y. 195, 201 ; Matter of *^ Supra, pp. 376, 377 ; Donovan v. Hoysradt, 20 Misc. Rep. 265 ; Geisse Van De Mark, 78 N. Y. at p. 246. 410 Trustees' Estate. ficiary and his power of disposition over it were restricted.** The whole inheritance, fee or estate, was placed in the trustees.*^ But as such estate does not descend to their heirs, the fee must be a qualified fee and not a fee simple absolute.*^ There are, however, not wanting authorities, susceptible of the conclusion that the estate which trustees of an express trust, under the 3d subdivision of the 76th section, now take is an estate pur autre vie.'" Indeed a late case holds that they do take an estate pur autre vie,*^ but no appeal was taken as the case was compromised. Certainly, where a trust is for alienation, trustees should take a fee ; and under the 3d sub- division of section 76 it would seem better to hold that they take a qualified or base fee and not an estate pur autre vie. But the authorities are not uniform on this point. ^i Infra, § 83, The Real Prop. Law. Kernochan v. Marshall, 165 id. 472, *5 Coster V. Lorillard, 14 Wend, at 479 ; Phoenix v. Livingston, lOi id. p. 304; Northam v. Dutchess Co. Mut. 451; Roosevelt v. Van Alen, 31 App. Ins. Co., 166 N. Y. 319, 322 ; and see Div. i ; Knox v. Jones, 47 N. Y. at Hatch, J., in Marks v. Halligan, 61 p. 397; Nicoll v. Walworth, 4 Den. App. Div. 179, 181. 38s, 36 Am. Law Rev. 641 ; Matter of *^ Supra, pp. 273, 274, under § 34, City of New York (lioth Sfeet), 81 and under § 21, pp. 157, 158. App. Div. 27. 4^ Supra, pp. 273, 274 ; Embury v. 48 Matter of Armory Board, 29 Sheldon, 68 N. Y. 227, 234; Nicoll v. Misc. Rep. 174; 30 Code Civ. Proc. Walworth, 4 Den. 385, 388; Steven- Rep. 123. In 1902 and 1903, the point son V. Lesley, 70 N. Y. 512, 517; Pro- came up again and was left imdecided. vost V. Provost, 70 id. 141, 145; Losey In re Duncan, N. Y. L. J., Feb. 28, V. Stanley, 147 id. at p. 568; Crooke 1892; Matter of City of New York V. County of Kings, 97 id. at p. 446; (iioth Street), 81 App. Div. 27. Remainders on Trustees' Estates. 411 § 8i. Qualification of last section — The last section shall not prevent any person, creating a trust, from declaring to whom the real property, tO' which the trust relates, shall belong, in the event of the failure or termination of the trust, or from granting or devising the property, subject to the exe- cution of the trust. Such a grantee or devisee shall have a legal estate in the property, as against all persons, except the trustees, and those lawfully claiming under him. Formerly i Revised Statutes, 729, section 61 : § 61. The preceding section shall not prevent any person creating a trust, from declaring to whom the lands to which the trust relates, shall belong, in the event of the failure or termination of the trust; nor shall it prevent him from granting or devising such lands, subject to the execution of the trust. Every such grantee or devisee shall have a legal estate in the lands, as against all persons, except the trustees and those lawfully claiming under them.« Object of Section 81. This section, as originally framed, was in- tended to make it quite clear that, although the trustees took the whole legal estate, or a base or qualified fee, under the prior section, yet the settlor of the trusts might make another ulterior limitation of the estate, if it were not inconsistent with the estate granted or the rule against a perpetuity.^" Thus, a remainder in fee may be limited after a trust estate created under the 3d subdivision of the 76th section.^^ For, if the trustees of an express trust take a fee, a fee may be mounted on a fee under the Revised Statutes and this act.'^ And such a remainder is well limited to those who were beneficiaries of the express trust.^^ All the limitations of future estates permitted by the Revised Statutes may follow a qualified fee to the trustees, and it is unneces- sary that their estate should be con.strued to be an estate pur autre vie in order to save such future estates. Indeed less embarrassment would follow, particularly under the 34th section of this act, if such estate were held to be a fee and not an estate pur autre vie. *^ Repealed, chap. 547, Laws of Embury v. Sheldon, 68 N. Y. 227; 1896. Matter of Tienken, 131 id. 391 ; Losey 50 Embury v. Sheldon, 68 N. Y. 227 ; v. Stanley, 147 id. 560 ; Craver v. Jer- Matter of Tienken, 131 id. 391, 401 ; main, 17 Misc. Rep. 244. Roberts v. Cary, 84 Hun, 328; Briggs 52 fhe Real Prop. Law, § 40. V. Davis, 21 N. Y. S74, 577 > cf. Amory 53 Stevenson v. Lesley, 70 N. Y. V. Lord, 9 id. 403, 413; Crooke v. 512, 516; Craver v. Jermain, 17 Misc. County of Kings, 97 id. at p. 446. Rep. 244, 253. 51 Vide The Real Prop. Law, § 32 ; 412 Reversions on Trustees' Estates. § 82. Interest remaining in grantor of express trust. — Where an express trust is created, every legal estate and interest not embraced in the trust, and not otherwise disposed of, shall remain in or revert to, the person creating the trust or his heirs. Formerly i Revised Statutes, 729, section 62: § 62. Where an express trust is created, every estate and interest not em- braced in the trust and not otherwise disposed of, shall remain in, or revert to, the person creating the trust, or his heirs, as a legal estate.^* Object of this Section. Section 81 having provided for limitations by way of remainder on estates in trust, this section (82) saves reversions. This legislation has express reference to the section declaring the whole estate in the trustees of an express trust.^' Its object was to save reversionary interests in those cases where the estate of the trustees was a future estate, and where such estate was defeasible after a life or lives, and no remainder was limited, and the reversion was not disposed of in any way.^* If the estate of trustees is an estate pur autre vie,^'' then there is always a rever- sion or remainder to be disposed of.^^ If not disjwsed of, it is clear, under this section, that it belongs to the settlor or his heirs,'" not- withstanding the 80th section of this act. This section would once have indicated that the estate of the trustees of an express trust is now an estate pur autre vie ; for, formerly there could be no rever- sion on an estate in fee after the Statute Quia Emptores.^^ But this argument cannot hold at present, as the fee now taken by trus- tees of an express trust is by force of the statute and not by the common law.^'^ Section 91 of this act®^ changed the common course of descents in respect of fee simple estates held by a surviving trustee, thus making them abnormal, or qualified, estates of inheritance.*^ In other respects the nature of their fee is not changed except that it cannot be alienated in contravention of an express trust. The extent of their leasing power seems also debatable.** 5* Repealed, chap. 547, Laws of Bowers v. Smith, ro id. 193, 200; 1896. White v. Howard, 46 N. Y. 144, 169; 55 The Real Prop. Law, § 80. Vernon v. Vernon, 53 id. 351 ; Near- 58 Briggs V. Davis, 21 N. Y. S74- pass v. Newman, 106 id. 47. 57 See the cases under § 34, The so Supra, pp. 24, 259, 289. Real Prop. Law. ei The Real Prop. Law, § 80. 58 Crooke v. County of Kings, 97 62 The Real Prop. Law. N. Y. at p. 446. ^^ Supra, p. 274. 5!> James v. James. 4 Paige, 115; ^4 gee under § 86. When Trust-Beneficiaries May Alienate. 413 § 83. What trust interest may be alienated — The right of a beneficiary of an express trust to receive rents and profits of real property and apply them to the use of any person, can not be transferred by assignment or otherwise, but the right and interest of the beneficiary of any other trust in real property may be transferred. '''' This section, 83, read originally as follows : " § 83. What trust interest may be alienated. — The right of a beneficiary of an express trust to receive rents and profits of real property and apply them to the use of any person, cannot be trahsferred by assignment or other- wise ; but the right and interest of the beneficiary of any other trust may be transferred. Whenever a beneficiary in a trust for the receipt of the rents and profits of real property is entitled to a remainder in the whole or a part of the principal fund so held in trust subject to his beneficial estate for a life or lives, or a shorter term, he may release his interest in such rents and profits, and thereupon the estate of the trustee shall cease in that part of such prin- cipal fund to which such beneficiary has become entitled in remainder, and such trust estate merges in such remainder." Section 83 was formerly i Revised Statutes, 730, section 63 : § 63. No person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign or in any manner dispose of such inter- est ; but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created, are assignable.^^ I R. S. 730, section 63, had been amerfded in 1893 by the following act : CHAP. 452. An Act to amend section sixty-three of article second, title two, chapter one, part two of the revised statutes, in relation to uses and trusts. Approved by the Governor, April 21, 1893. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Section sixty-three of article second, title two, chapter one of part two of the revised statutes, is hereby amended so as to read as follows : § 63. No person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign or in any manner dispose of such interest; but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created are assignable. Always provided that whenever the person beneficially interested in the whole or any part of the income of any trust heretofore or hereafter created for the receipt of the ^^ As amended by chap. 88, Laws ^^ Not repealed by chap. S47, Laws of 1903. This act saves existing of 1896, but by chap. 417, Laws of rights. 1897. 414 When Trust-Beneficiaries May Alienate. rents and profits of lands or the income of personal property shall have here- tofore become or may hereafter be or become entitled in his or her own right or through title derived as legatee, distributee or next of kin, or derived through the legal representatives of any deceased person to the remainder in the whole or any part of the principal fund so held in trust subject to such estate for a life or lives or a shorter term then and in any such case it shall and may be lawful for such person so beneficially interested in the whole or any part of the income of such trust estate for a life or lives or a shorter term and become entitled to the remainder in the whole or any part of the principal fund so held subject to said trust estate for a life or lives or a shorter term, to make and execute a conveyance or release, duly acknowl- edged in like manner as a deed to be recorded, whereby such person so beneficially interested in the whole or any part of the income of such trust for a life or lives or a shorter term shall convey or release to himself or herself or the person presumptively entitled to the remainder or reversion upon the then termination of such trust estate all his or her right, title and interest in and to the income of such trust estate for a life or lives or a shorter term, and thereupon the estate of the trustee or trustees as to the whole or such portion of the principal fund so held in trust to which such person so releasing shall have heretofore become or may hereafter become entitled to the remainder as aforesaid shall cease and determine, and the trust estate for a life or lives or a shorter term so far as it affects the whole or such portion of the income and principal fund to the remainder in which said person so releasing has heretofore become or may hereafter be or be- come entitled shall be and become forthwith merged in such remainder or reversion. § 2. That this act shall take effect immediately. ^'^ -' Comment on this Section. It will be perceived from the various read- ings of the acts just set out under this section, that the provisions of the Revised Statutes have been restored by the act of 1903,^^ and that the beneficial interests of certain cestuis que trustent are again rendered as inalienable as under the Revised Statutes. It has been stated above that prior to the Revised Statutes there could be no restraint imposed by settlors on the power of alienation by cestuis que trustent, excepting in the case of married women.*'® Even in the case of femes covert the restraint was one directed against anticipation rather than against alienation generally.™ A '•" Not repealed by chap. 547, Laws brief of counsel in Noyes v. Blakeman, of 1896, but by chap. 417, Laws of 6 N. Y. at pp. 574-576; Graf? v. Bon- 1897. nett, 31 id. 9, 15; Dyett v. Cent. Trust 68 Chap. 88, Laws of 1903 ; Cook v. Co., 140 id. 54, 65. Straiton, 41 Misc. Rep. at p. 211. ™Le^in^ Trusts (Last ed.), 781; ^^ Supra, pp. 379, 380; Bryan v. Hayne's Outlines of Equity, 207, 211 Knickerbacker, i Barb. Ch. 409, 412; (Ed. of 1S58). When Trust-Beneficiaries May Alienate. 415 perpetuity never could be created by means of an executed trust, but a restraint on alienation by cestui que trust as it was thought tended to a perpetuity." The clause restraining a married woman's power of anticipation is of modern growth ;''^ following the very harsh, but just, decision in Pybus v. Smith,''^ where the husband's creditors took the wiife's trust estate " while the wax was yet v/arm upon the deed " of settlement.'^* Subsequently Lord Thur- low directed the words " and not by anticipation " to be added to an ordinary limitation for the separate use of the wife. By general consent this was deemed a protection to the wife. But its applica- tion was so limited that it was held that it could not operate to restrain aHenation on the part of a widow or a maid, for that was a general restraint on alienation which even equity would not tolerate.'^^ Effect of this Section. It was said in Noyes v. Blakeman, by emi- nent counsel, " The Revised Statutes^^ have in effect written the clause against anticipation in every instrument which creates an express trust, and made it applicable to all kinds of beneficiaries, so that neither the beneficiary nor the court can deal with it." '''' This novel restraint was framed at a time when the 3d subdivi- sion of the express trust section was thought to authorize only spendthrift trusts, or trusts for the benefit of minors, femes covert, lunatics and persons presumed to be incapable of caring for their own estates.''^ But after the general application of the 3d subdivi- vision to all trusts to receive and pay over rents,™ this restraint received also a general application, and was held to restrain all beneficiaries of such a trust not only from anticipating, but from '''"' Lewin, Trusts (Last ed.), 97; Jones v. Salter, id. 208; i White & Schenck v. Barnes, 25 App. Div. 153, Tudor, Lead. Cas. in Eq. 605, notes ; 155, 156 N. Y. 316; I Perry, Trusts, Bispham Eq., § 104; i Perry, Trusts, §§ .382, 386. § .386. ■^2 Hayne's Outlines of Equity, 207, ''^ i R. S. 730, § 63, now § 83, supra, seq. See notes to i White & Tudor, ^^ Noyes v. Blakeman, 6 N. Y. at p. Lead. Cas. in Eq. 605; Gray, Re- 576; cf. Dyett v. Cent. Trust Co., 140 straints on Alienation (2d ed.), id. at p. 66; Schenck v. Barnes, 156 i§ i2S-i3ik, 140-142, 269-277. id. at p. 325; Cuthbert v. Chauvet, 136 ■^3 I Ves. Jr. 194. id. 326 ; Raymond v. Harris, 84 App. ''* Jones V. Harris, 9 Ves. 493. Div. 546. ■^5 Woodmeston v. Walker, 2 R. & '8 Supra, pp. 376, 377. M. 197; Browne v.*Pocock, id. 210; ''^ Supra, pp. 378, 381. 416 When Trust-Beneficiaries May Alienate. alienating at all, the rents and profits of lands by instruments oper- ating inter vivos.^ Annuities. This section now applies to annuities charged upon trust estates,*^ although by some judges an annuity was regarded as assignable and not within this section.®^ But there are certain rents charge Which are sometimes called annuities which do not fall within this section of this act.®^ Common-law annuities were always alien- able and have remained so since the Revised Statutes,** but the so- called annuities or sums payable annually by trustees for the benefit of the so-called " annuitants " are not assignable.*^ How far Settlors of Trusts May Authorize Alienation ox Anticipation. How far settlors of estates may authorize the beneficiaries of a trust, entitled to the rents and profits of lands, to anticipate, charge or alienate such beneficial interest is a question wihich was formerly deemed to go to the validity of the entire trust limitation.** But, as was said in Crooke v. County of Kings, there seems to be no good reason why a settlor may not relieve the beneficiary from 80 Hone v. Van Schaick, 7 Paige, 384, and 4 Columbia Law Rev. 429 ; 221 ; Clute V. Bool, 8 id. 83 ; Van Epps cf. Arthur v. Dalton, 14 App. Div. V. Van Epps, 9 id. 237; L'Amoureux 108. See supra, pp. 264, 265, as to V. Van Rensselaer, i Barb. Ch. 34; what were annuities within the mean- Grout V. Van Schoonhoven, i Sandf. ing of the Revised Stautes. Ch. 336 ; Noyes v. Blakeman, 6 N. Y. 82 Lang v. Ropke, 5 Sandf. 363 ; De 567; Campbell v. Foster, 35 id. 361, Kay v. Irving, 5 Den. 646, 651; De- 371; Bull V. Odell, 19 App. Div. 605; graw v. Clason, 11 Paige, 136; Mau- Lent V. Howard, 89 N. Y. 169, 181 ; rice v. Graham, 8 id. 483, 487 ; Radley v. Kuhn, 97 id. 26, 32 ; Crooke McGowan v. McGowan, 2 Duer, 57 ; V. County of Kings, id. 421, 433; Lang v. Wilbraham, id. 117; Eells Tolles V. Wood, 99 id. 616, 617; note v. Lynch, 8 Bosw. 465; O'Brien v. to 16 Abb. N. C. 27, et seq.; Matter Mooney, 5 Duer, 51. of Foster, 37 Misc. Rep. 581. ^ Vide supra, pp. 264, 265. 81 Cochrane v. Schell, 140 N. Y. 84 Supra, p. 383. S16, overruling on this point Lang v. 85 Cochrane v. Schell, 140 N. Y. Ropke, S Sandf. 363; McSorley v. 516; Rothschild v. Roux, 78 App. Div. Wilson, 4 Sandf. Ch. 549; Clute 282. V. Bool, 8 Paige, 83 ; Gott v. Cook, 86 Coster v. Lorillard, 14 Wend. 265, 7 id. 521; s. t. 24 Wend. 641; Her- 332, 333; Wood v. Wood, 5 Paige, zog V. Title G. & T. Co., 177 N. Y. 596; cf. Crooke v. County of Kings, 86; Rothschild v. Roux, 78 App. Div. 97 N. Y. at p. 448; Marvin v. Smith, 282 ; Hooker v. Hooker, 41 id. 56 Barb. 600, 605 ; affd., 46 N. Y. 23s; 2 White & Tudor, Lead. Cas. in S7i, 5771 Wright v. Miller, 8 id. at Eq. 265 seq. ; et vide supra, pp. 383, p. 25. « When Trust-Beneficiaries May Alienate, 417 the ban of this section or any other provision tending to a perpetuity. ^^ Trusts for Settlor's Own Benefit. This section has no application to trusts created by settlor for his own benefit.** A " Sum in Gross " May be Alienated. A " sum in gross " under the Revised Statutes was held to mean a single sum whether pay- able at one time or in installments.*® But the present section of this act does not limit the power of any beneficiary to the assign- ment of sums in gross. Aid interests of beneficiaries, except those created under the 3d subdivision of the 76th section of this act, are now alienable.®" No doubt such was the law prior to this act.®^ Beneficiary of an Express Trust May Take a " Remainder." We have seen that a beneficiary of an express trust may also be entitled to an estate limited in remainder.®* This fact gave rise to the act of 1893, now abrogated.®^ This was not the first act of a like char- acter. Chapter 375, Laws of 1849,®* provided for the termination of trusts for the sole benefit of married women on the certificate of a justice of the Supreme Q>urt.®^ At common law trusts might be extinguished by the united action of all parties in interest and the cestui que trust might call for a conveyance of the legal estate.®® The act of 1893 was said to be dangerously near the constitutional prohibition directed against violations of vested interests -^ but it is difficult to see why, as the interests of cestuis que trustent were *T 97 N. Y. p. 448 ; cf. Ullman v. ®* Now § 29 of art. Ill, chap. 272, Cameron, 92 App. Div. 92; Solley v. Laws of 1896. Westcott, 43 Misc. Rep. 188. ^ Cf. Douglass v. Cruger, 80 N. Y. ^ Schenck v. Barnes, 156 N. Y. 15; Genet v. Hunt, 113 id. at pp. 168, 316; Raymond V, Harris, 84 App. Div. 171; and as to construction of this 546. act of 1849 to trusts created after its *® Cochrane v. Schell, 140 N. Y. at enactment, Thebaud v. Schermer- PP- 534, 535 ; Rothschild v. Roux, 78 horn, 10 Abb. N. C. 72. App. Div. 282. ^^ Short v. Wilson, 13 Johns. 33, 37 ; ®<' § 83, supra. Brewster v. Brewster, 4 Sandf. Ch. 91 Van Wyck v. Richman, 33 Misc. 22, 29; Cuthbert v. Chauvet, 136 N. Rep. 404; supra, pp. 380, 415. Y. 326, 329; Lewin, Trusts, 486; cf. ^'^ Supra, p. 386; Stevenson v. Les- Wright v. Miller, 8 N. Y. 9. ley, 70 N. Y. 512; Ogden v. Ogden, 97 Qviatt v. Hopkins, 20 App. Div. 40 Misc. Rep. 473. 168; cf. Matter of Heinz, 20 Misc. 93 Supra, p. 413, and see Matter of Rep. 371 ; Cuthbert v. Chauvet, 136 Heinz, 20 Misc. Rep. 371. N. Y. 326, 330, 331. 27 418 When Trust-Beneficiaries May Alienate. rendered inalienable only by statute, and what a statute effects may be enlarged or abrogated if vested rights are not taken away. Act of 1893. Under the act of 1893, and for some years under section 83 of this act,®* a beneficiary of a trust, entitled also to the estate in remainder, might extinguish the trust and call upon the trustees for a conveyance.^® This was a return to the law existing before the Revised Statutes.^ The act of 1893 was, however, said not to apply to contingent remainders.^ It was also argued, that it should not apply where the remainder was acquired by assignment.* The repeal of the substance of the act of 1893 saves existing rights, and consequently places trusts created after 1893 and until 1903 on a particular basis.* Does it mean that such cestuis que trustent have still the right to extinguish the trust when vested with the remainder, although other cestuis would not have such rights? Exception. This section has no application to trusts created before January i, 1830.^ Comment. It has been held that the acts relating to the extin- guishment of express trusts by merger and consent were not retro- active, and consequently were inoperative on trusts created before their passage.® It is also intimated'^ that the acts indicated above, permitting the merger of vested legal estates in remainder, with vested equitable interests of trust beneficiaries, and the consequent destruction of the trust, are in the nature of an interference with vested rights of trustees. This seems to assume that the estate to feed a trust is one vested in the trustee independently of the posi- tive law, whereas such estates exist only by sufferance and permis- ^8 Chap. 4S2, Laws of 1893 ; supra, 610, 62 App. Div. 79 ; Thall v. Drey- p. 413. fus, 84 id. 569. ^ Snedeker v. Congdon, 41 App. ^ 3 Columbia Law Rev. 155 ; sed Div. 433, 438; Butler v. Butler, 41 id. cf. Mills v. Mills, 50 App. Div. 221. 477. 479 ; Mills v. Mills, 50 id. 221 ; * Chap. 88, Laws of 1903 ; cf. Mat- Albany Exchange Savings Bank v. ter of Gibson, 42 Misc. Rep. 157. Brass, 59 id. 370, 376 ; Matter of Ho- ^ Dyett v. Central Trust Co., 140 garty, 34 Misc. Rep. 6io; affd., 62 N. Y. 54; Cuthbert v. Chauvet, 136 App. Div. 79; Thall v. Dreyfus, 84 id. 326, 331. id. 569; cf. Matter of Rutherford, 36 e Metcalfe v. Union Trust Co., 87 Misc. Rep. 314; Cook v. Straiton, App. Div. 144; Oviatt v. Hopkins, 20 41 id. 206. id. 168; Newcomb v. Newcomb, 33 ^ Infra, p. 419. Misc. Rep. 191. 2 Matter of Hogarty, 34 Misc. Rep. "> Following Oviatt v. Hopkins, 20 App. Div. 168. When Trust-Beneficiaries May Alienate. , 419 sion of law. A trustee's estate is not a proprietary estate.* Re- straints on alienation are also statutory exceptions to law and anomalous. What the law tolerates, it may certainly reform. It is to be observed that one justice dissented in the last case in question.® It seems to be an extraordinary condition of the law if the Legis- lature cannot enable us to extinguish a trust where all parties to the settlement, including all the beneficiaries of the trust and those entitled in remainder, consent to a resettlement of the estate and only the trustee dissents. At common law, cestuis que trustent could al- ways call upon trustees to execute conveyances of the estate where the cestuis had an equitable fee, and if the trustee did not obey he was cliarged with costs.^" This was the law in this State prior to the Revised Statutes. Now it seems this is all changed if the recent decisions are to be relied on. One may have the entire beneficial estate and the legal estate in fee in remainder, and yet it is held that the Legislature is powerless to enable such an one to destroy the trust without the consent of the trustee.^^ Can this be the law ? But in order to extinguish a trust in the fee under the act of 1893 and section 83 as it stood before the late amendment, the beneficiary's interest must not be partial, or conditional, but absolute and in- tegral. ^^ In other words, the beneficiary must have what was formerly called an " equitable fee simple." 8 According to Oviatt v. Hopkins " Oviatt v. Hopkins, 20 App. Div. the Statute of Uses might be uncon- i68; Metcalfe v. Union Trust Co., 87 stitutional if re-enacted. id. 144. 9 87 App. Div. 150. 12 Matter of United States Trust 10 Lewin, Trusts (3d Lond. ed., 2d Co., 175 N. Y. 304; Metcalfe v. Union Am. ed.) 595. Trust Co., 87 App. Div. 144; Matter of Gibson, 42 Misc. Rep. 157. 420 Bona Fide Purchasers Protected. § 84. Transferee of trust property protected. — Where an express trust is created, but is not contained or declared in the con- veyance to the trustee, the conveyance shall be deemed abso- lute as to the subsequent creditors of the trustee not having notice of the trust, and as to subsequent purchasers from the trustee, without notice and for a valuable consideration. Formerly i Revised Statutes, 730, section 64: I 64. Where an express trust is created, but is not contained or declared in the conveyance to the trustees, such conveyance shall be deemed abso- lute, as against the subsequent creditors of the trustees, not having notice of the trust, and as against purchasers from such trustees, without notice, and for a valuable consideration.^^ Effect of this Section. While the statute still contemplates that an express trust shall be effected by means of a conveyance or will,^* yet the declaration of trust may be separate from the instrument of conveyance.^^ As subsequent purchasers have notice of all recorded instruments affecting the title,^^ this section relieves only bona Ude purchasers and creditors of the grantee from the necessity of in- quiring whether a recorded conveyance to their grantor, absolute on its face, is in reality connected with a trust, raised dehors such con- veyance.^^ Note of Revisers. In their note to this section the original revisers state that " the effect of this section will be, in a great measure, to abolish secret trusts by making it the interest of the parties, in all cases, that the trust should be incorporated in the conveyance." ^® Common Practice. Since the Revised Statutes the practice is to in- corporate the substance of the trust in the conveyance, and the rec- ord of the conveyance affords prima facie proof of the acceptance of the trusts and of the delivery of the conveyance.-'^ It was the old practice to have an acceptance of the trusts indorsed on the con- veyance, and in complicated affairs it is still the better practice to pursue this course. 13 Repealed, chap. S47, Laws of i8g6. s6g ; Briggs v. Davis, 20 id. at p. 21 ; ^* Infra, § 207, The Real Prop. Law. § 241, infra. IB Hutchins v. Van Vechten, 140 N. ^'^ Harrington v. Erie County Say. Y. IIS; supra, p. 362. Bank, loi N. Y. 257. 16 Johnson v. Fleet, 14 Wend. 176, l^ /„^^(j, Appendix IL 183 ; Kirsch v. Tozier, 143 N. Y. 390, 10 Vide infra, under § 207, The Real 395; Wright V. Douglass, 7 id. 564- Prop. Law. Bona Fide Purchasers Protected. 421 This Section does not Refer to Resulting Trusts. This section refers to express trusts only, and not to resulting trusts or trusts arising ex maleftcio.^° 20 Davis V. Graves, 29 Barb. 480. suiting and implied trusts, § 75, The See a similar provision regarding re- Real Prop. Law, p. 364, supra. 422 Trustees' Conveyances. § 85. When trustee may convey trust property. — If the trust is expressed in the instrument creating the estate, every sale, conveyance or other act of the trustee in contravention of the trust, except as provided in this section, shall be abso- lutely void. The supreme court may by order, on such terms and conditions as seem just and proper, authorize any such trustee to mortgage or sell such real property or any part thereof whenever it appears to the satisfaction of the court that said real property, or some portion thereof, has become so unproductive that it is for the best interest of such estate or that it is necessary or for the benefit of the estate to raise funds for the purpose of preserving it by paying off incumbrances or of improving it by erecting buildings or making other improveir.ents, or that for other peculiar reasons, or on account of other peculiar circum- stances, it is for the best interest of said estate, and when- ever the interest of the trust estate in any real property is an undivided part or share thereof, the same may be sold if it shall appear to the court to be for the best interest of such estate. As lately amended by chapter 136, Laws of 1897. Before this last-mentioned act, section 85 of The Real Property Law.^l as originally drawn, read as follows : § 85. When trustee may convey trust property. — If the trust is expressed in the instrument creating the estate, every sale, conveyance or other act of the trustee, in contravention of the trust, except as provided in this section, shall be absolutely void. The supreme court may, by order, on such terms and conditions as seem just and proper, authorize any such trustee to mort- gage or sell such real property, or any part thereof, whenever it appears to the satisfaction of the court that it is for the best interest of such estate, or that it is necessary and for the benefit of the estate, to raise funds for the purpose of preserving and improving it; and whenever the interest of the trust estate in any real property is an undivided part or share thereof, the same may be sold, if it shall appear to the court to be for the best interest of such estate. Section 85 of the Real Property Law was taken from i Revised Statutes 730, section 63, as amended by the acts mentioned in the note : § 65. Where the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other act of the trustees, in contravention of the trust, shall be absolutely void.-^ 21 Chap. 547, Laws of 1896, being 1886 ; chap. 209, Laws of 1891 ; chap, chap. 46, General Laws. 886, Laws of 1895 ; chap. 547, Laws 22 Chap. 275, Laws of 1882 ; chap, of 1896 ; chap. 136, Laws of 1897. 26, Laws of 1884; chap. 257, Laws of Trustees' Conveyances. 423 Account of Section 85, Supra. As last set forth above, stood the Revised Statutes from 1830 until 1882, when chapter 275 of the laws of that year attempted to permit a trustee to mortgage the trust estate, in contravention of the terms of the trust, with the author- ization of a Supreme Court justice. In 1884, chapter 275 of the Laws of 1882 was re-enacted in chapter 26 of the Lav/s of 1884, ■correcting a wrong reference to section 65, i Revised Statutes, 730. In 1886, by chapter 257 of that year, section 65 of i Revised Stat- utes, 730, was further amended so as to provide for a sale as well as a mortgage by the trustee in contravention of a trust. In 1891, by chapter 209 of the laws of that year, section 65, i Revised Statutes, 730, was further amended so as to provide for a sale where the trust estate was an undivided part or share of another estate. In 1895, section 65, i Revised Statutes, 730, was amended as follows : CHAP. 886. An Act to amend section sixty-five of part second, chapter one, title two, article second of the Revised Statutes, being in relation to uses and trusts. Became a law June 4, 1895, with the approval of the Governor. Passed by a two-thirds vote. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Section sixty-five of part second, chapter one, title two, article second of the Revised Statutes is hereby amended so as to read as follows : § 65. Where the trust is or shall be expressed in the instrument creating the estate, every sale, conveyance, or other act of the trustees, in contraven- tion of the trust, shall be absolutely void; provided, however, that the su- preme court shall have power, upon such terms and conditions as to the court shall seem just and proper, in any case to authorize any such trustee to mortgage or sell any such real estate whenever it shall appear to the satis- faction of said court, or a judge thereof, that it is for the best interest of said estate so to do, and that it is necessary, and for the benefit of the estate, to raise by mortgage thereon, or by a sale thereof, funds for the pur- pose of preserving or improving such estate, or whenever the interest of the trust estate in any real property is an undivided share or part thereof; and it shall satisfactorily appear to the court or a judge thereof that on that account it is for the best interest of the trust estate to authorize the trustee to sell such undivided part or share. No order directing such trustee to mortgage or sell said lands shall be granted, unless it shall appear to the satisfaction of such court or judge that a notice in writing, stating the time and place of making the application therefor, has been served upon the beneficiary or beneficiaries of said trust, at least eight days before making such applica- 424 Trustees' Conveyances. tion, if said beneficiary or beneficiaries are within this state and adult. In case said beneficiary or beneficiaries are infants, lunatics, persons of un- sound mind, habitual drunkards or absentees, said court or judge shall not direct the trustees to mortgage or sell Said lands until such beneficiary or beneficiaries are brought into court by such notice as said court or judge may prescribe. Where a trustee is appointed to hold real estate during the life of a beneficiary, and to pay or apply the rents, income and profits thereof, to or for the use of such beneficiary, the supreme court shall have power to authorize such trustee to lease said real estate for such a term of years, at such a rental and upon such terms and conditions in respect to a renewal or renewals of said lease as to the court shall seem just and proper; pro- vided, however, that such authority shall not be given unless it shall appear to the satisfaction of the said court, or a judge thereof, that it is to the best interests of said trust estate so to do, and the said court shall, in like manner, have power to authorize the trustee to covenant in the said lease to pay at the end of the term or renewed term of said lease to the lessee or lessees, the then fair and reasonable value of any building or buildings which may be erected on the demised premises during such term or terms, such covenant to contain such other conditions for the determination of such value as to the court may seem just and proper. No order directing such trustee to lease said premises shall be granted unless it shall appear to the satisfaction of said court or judge that a notice in writing, stating the time and place of making the application therefor, was served upon the beneficiary or beneficiaries of said trust, and all other persons interested in the estate, at least eight days before making said application, if such beneficiary, beneficiaries or such other persons are within this State and adult. In case said beneficiary, beneficiaries or such other persons are infants or lunatics, persons of unsound mind, habitual drunkards or absentees, said court or judge shall not direct the trustee to lease said lands until such beneficiary, beneficiaries or such other persons are brought into court by such notice as said court or judge may prescribe. Notwithstanding the provisions herein contained, a trustee appointed for the purposes aforesaid, shall have authority, without making such application as aforesaid, to execute and deliver a lease of such real estate for a term of five years or less. In any case where, before the passage of this act, a trustee appointed for the purposes aforesaid, has leased real estate so held by him in trust for a longer term than five years, an application may be made to the supreme court or to a judge thereof upon like notice as hereinbefore mentioned, to the beneficiary, beneficiaries or such other persons for an order confirming such lease, and if on such application it shall appear to the said court or to a judge thereof, that the lease, when made, was for the best interests of the trust estate, such order shall be entered and shall be binding on all persons interested in the trust. § 2. This act shall take effect immediately.^ Scope of Section 85. This section (85) is now substituted for all the prior legislation respecting sales and mortgages by trustees.^ 2S Repealed, chap. 547, Laws of 1896. ject of the next two sections of The 24 Leases by trustees are the sub- Real Prop. Law. Trustees' Conveyances. 425 The Old Law. Prior to the Revised Statutes one who had actual notice of a trust could not acquire the property free of the trust without the consent of the cestuis que trustent.^ But with the con- sent of the cestuis que trustent it was otherwise, until the clause against anticipation was invented and subsequently written in the statute.^^ The trustees of an express trust, who had the fee, had at common law all the powers which legal ownership conferred, although in equity the cestuis were the absolute owners.^''^ Comment. The original of section 85 of this act introduced a new rule, and, therefore, it applied only prospectively.^* As the object of the new rule was to protect the rights of the beneficiaries of express trusts, persons now dealing with trustees must take notice of this limitation on their power ;^^ for, if the act or deed of a trustee is in contravention of the trust, it is void, not voidable.^* But a mere exchange or reinvestment is not necessarily in contra- vention of the trust.®-' It is by force of this provision of the stat- ute rendering trust estates inalienable that trust estates now tend to a perpetuity.^^ This section (85) applies to express trusts valid as powers as much as to express trusts under the 76th section of this act.®^ Effect of this Section on Estates in Remainder. This section, as now amended, does not, however, authorize the sale of the estate of remaindermen, for that estate vests in possession only when the estate of the trustee ceases.^* Estates in remainder of infants may, 25 Shepherd v. McEvers, 4 Johns. Rollins. 107 id. 316; U. S. Trust Co. Ch. 136; Briggs v. Davis, 20 N. Y. 9, v. Roche, 116 id. 120, 127; Cuthbert 21 ; Kirsch v. Tozier, 143 id. at p. 395. v. Chauvet, 136 id. 326 ; Potter v. 26 Harrington v. Erie County Sav., Hodgman, 81 App. Div. 233. Bank, loi N. Y. 257, 264; supra, pp. 3i Hawley v. James, s Paige, 444, 379. 399- 445; s. c, 16 Wend. 163, 164; Bel- 2T Lewin, Trusts, 242, 412. mont v. O'Brien, 12 N. Y. 394, 402. 28 1 R. S. 730, § 64; Johnson v. ^^ Supra, pp. 380, 381; Hillen v. Fleet, 14 Wend. 176, 183 ; cf. Losey v. Iselin, 144 N. Y. at p. 379. Stanley, 147 N. Y. at p. 571. 33 Russell v. Russell, 36 N. Y. 581, 2» Johnson v. Fleet, 14 Wend, at p. 584. 183 ; Briggs v. Davis, 20 N. Y. at p. ^% 8s, supra; Goebel v. IfHa, 48 21; Losey v. Stanley, 147 id. at p. 571. Hun, 21; aifd., in N. Y. 170; Matter 30 Powers v. Bergen, 6 N. Y. 358, of Mills, 22 Misc. Rep. 629; Losey v. 360; Briggs V. Davis, 21 id. 574; Smith Stanley, 147 N. Y. 560, 571; cf. Ebling V. Bowen, 35 id. 83 ; Fitzgerald v. Top- v. Dryer, 149 id. 460, 28 App. Div. ping, 48 id. 438, 444; McPherson v. 258 and §§ 57-61, supra. 426 Trustees' Conveyances. however, be sold under certain circumstances, pursuant to the Code of Civil Procedure and this act.^ This Law not Retroactive. The various amendments to I Revised Statutes, 730, section 65, are not retroactive.^* Prior to the act of 1882, the court did not have the power to enable a trustee to make a mortgage in contravention of an express trust to hold.^'' But a mortgage given to preserve the trust property from a forced sale was not, even prior to 1882, necessarily in contravention of an express trust to hold an estate.^* This Section does not Authorize Sale for Reinvestment. This section of this act does not authorize a sale of a trust estate for the purpose of reinvestment, even though such reinvestment may augment the income of the trust estate.^^ Trustees May Exchange Lands, when. The following act regulates exchanges by trustees for certain purposes ; CHAP. 311. An Act to authorize executors and trustees, subject to the approval of the supreme court, to acquire or exchange lands for the purpose of straight- ening or improving boundary lines of real property. Became a law April 19, iSgS, with the approval of the Governor. Passed, « majority being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Whenever, by the provisions of a will, or of a deed of trust, a power of sale is given to one or more executors or trustees, it shall be law- ful for any such executor or trustee, subject to the approval of the supreme court, to acquire or exchange lands adjacent to the land or lands subject to such power of sale, as may be deemed desirable for the straightening or improvement of the boundary lines thereof, upon such terms and conditions as may be approved by the supreme court; and the supreme court may, by order, on such terms and conditions as seem just and proper, authorize any 55 § 2348, Code Civ. Proc. ; Matter Taylor v. Porter, 4 Hill, 140 ; Powers of Asch, 75 App. Div. 486; chap. 154, v. Bergen, 6 N. Y. 358; Lytle v. Bev- Laws of 1903; §§ 57-61, supra. eridge, 58 id. 592, 602; Ebling v. 36 United States Trust Co. v. Roche. Dryer, 149 id. 460. 116 N. Y. 120. 38 u. S. Trust Co. v. Roche, 116 N. 3T Cruger v. Jones, 18 Barb. 467; Y. 120; cf. Matter of Nesmith, 140 Briggs V. Davis, 20 N. Y. 15, 21 id. id. 609; Boon v. Hall, 76 App. Div. 574; Rathbone v. Hooney, 58 id. 463; 520, 524. Douglass V. Cruger, 80 id. 15; cf. 39 Matter of Roe, 1 19 N. Y. 509. Trustees' Conveyances. 427 such executor or trustee to acquire or exchange lands adjacent to the land or lands subject to such power of sale for the purposes mentioned in this act. § 2. This act shall take effect immediately. Disposition of Property of Incompetent Persons. A separate statute provides for the disposition of the real property of infants and other incompetent persons.** The same statute provides that, real property, or an interest in real property, shall not be sold, leased or mortgaged as prescribed in this title contrary to the provisions of a will by which it was devised, or of a conveyance or other instrument by which it was transferred to the infant or incompetent person.*^ Breaches of Trust. If a trustee contravene the directions of an ex- press trust, either as to investments or otherwise, it is a breach of trust. He must follow the directions of the settlor of the trust." Conversely if trustees obey the directions and a loss ensue they are not liable.*^ If the instrument is silent concerning investments the statute or some court of equity usually prescribes them.** The general rule of the common law was, that the trustee could invest in real or government securities only.*^ But this rule has been modified as stated above.*® Acquiescence of Beneficiaries in Breaches of Trust. Even though trus- tee committ a breach of trust, if it is at the solicitation of the beneficaries, or if they acquiesce in it, they will be estopped from questioning it*'' « §§ 2348-2356, Code Civ. Proc; ** § 9, Personal Prop. Law; King v. chap. IS4, Laws of 1903; cf. §§ 57-61, Talbot, 40 N. Y. 76; Adair v. Brim- ^upra. mer, 74 id. 539, 550; Matter of Reed, *i § 2357, Code Civ. Proc; cf. 2 45 App. Div. 196; Matter of Hall, 48 R. S. 195, § 6; O'Donoghue v. Boies, id. 488, modified, 164 N. Y. 196; Mat- 159 N. Y. 87; Livingston v. Living- ter of Wotton, 59 App. Div. 584, 586; ston, 56 App. Div. 484; Matter of § 94, The Real Prop. Law. Asch, 75 id. 486. 45 Ackerman v. Emott, 4 Barb. 626. *2Birrell, Duties and Liabilities of « Ormiston v. Olcott, 84 N. Y. 339. Trustees Lecture IV; Denike V. Har- 4T Birrell, Duties of Trustees, 118 ris, 84 N. Y. 89, 94; cf. § 94, infra. seq.; Matter of Reed, 45 App. Div. *3 2 Pomeroy, Eq. Jurisp. 647 ; 202 ; Woodbridge v. Bockes, 59 id. 503, Dunkle v. Butler, 30 Misc. Rep. 58; 518; Adair v. Brimmer, 74 N. Y. 539, cf. Matter of Wotton, 59 App. Div. 552; Matter of Hall, 164 id. 196, 201. 584, S86. 428 Trustees' Leases. § 86. When trustee may lease trust property. — A trustee ap- pointed to hold real property during the life of a beneficiary, and to pay or apply the rents, income and profits thereof to, or for, the use of such beneficiary, may execute and deliver- a lease of such real property for a term not exceeding five years, without application to the court. The supreme court may, by order, on such terms and conditions as seem just and proper, in respect to rental and renewals, authorize such a trustee to lease such real property for a term exceeding five years, if it appears to the satisfaction of the court that it is for the best interest of the trust estate, and may au- thorize such trustee to covenant in the lease to pay at the end of the term, or renewed term, to the lessee the then fair and reasonable value of any building which may have been erected on the premises during such term. If any such trustee has leased any such trust property before June fourth, eighteen hundred and ninety-five, for a longer term than five years, the supreme court, on the application of such trustee, may, by order, confirm such lease, and such order, on the entry thereof, shall be binding on all persons inter- ested in the trust estate. Formerly chapter 886, Laws of 1895, printed in full under section 85.** The Old Law Relating to Leases by Trustees. At the common law a trustee's power to lease (in the absence of an express power) depended primarily on the quantity and quality of the trustee's legal estate. If he had a fee he might make leases of any duration.*^ So, if it was an express trust to lease indefinitely, the nature of the trust was such that a fee in the trustee was implied.^'' But if the trustee had only an estate pur autre vie,^^ then (in the absence of an express power) the implied power to lease Was limited correspondingly. Tenant for Life. A tenant for life or pur autre vie could not at common law make leases to last beyond his own life in the one 48 Supra, p. 423. sed cf. Ackland v. Lutley, 9 Ad. & EI. 49 Naylor v. Arnitt, i Russ. & M. 879 ; Dyeing & Printing Estab. v. De 501 ; Greason v. Kettletas, 17 N. Y. Westenberg, 46 Hun, 281 ; affd., Daily 491 ; Comyn, Landl. & Ten. 22 ; Reg., Feb. 19, 1886 ; Hawley v. James, Hedges v. Riker, 5 Johns. Ch. 163 ; 16 Wend, at pp. 153-155. Woodfall, Landl. & Ten. (i6th ed.) 36. ^i As in Jones v. Lord Say & Seale, 50 Doe V. Willan, 2 Barn. & Aid. 84; 8 Viner's Abr. 262. Trustees' Leases. 429 case, or that of cestui que vie in the other,®^ and such remains the law at present.^^ Tenants in Tail. An ancient English statute enabled tenants in tail to make leases for three lives or twenty-one years. Corporations. Corporations holding in fee were restricted to the same period by certain other ancient statutes.®* Tenant for Life. If tenant for life created an estate greater than his own, it formerly worked a forfeiture of his estate.^® The Revised Statutes altered the last stated rule by providing that such a conveyance by a tenant for life of a greater estate than his own should not work a forfeiture, but be operative to pass the tenant's interest only.°® Fonner Law Relating to Leases by Life Tenants. When tenant for life could not make leases for any certain time, or beyond his own life, it became usual to insert a power of leasing in any well-drawn settlement, limited by way of use, and such a power to lease for any length of time was good against reversioners or remainder- men.®^ But a lease under a power must conform to the power, or it was void in law,®^ but good in equity, at least to the actual extent of the power.®' New York Law. Prior to the year 1 830 there seems to have been, in New York, no statutory general restriction upon the power of tenants in fee simple to grant leases.*" The Revised Statutes provided that a power might be granted to tenants for life to make leases of the estate granted for not more than twenty-one years, to commence in possession at any time during such tenants' 52 Doe V. Butcher, i Doug. 50 ; Co. Kingman, i N. Y. 242, 257 ; Moore v. Litt. 47b; Taylor, Landl. & Ten., § 112. Littel, 41 id. 66, 78; § 212 infra. 53 Matter of City of New York 87 Cruise, Dig. tit. 32, chap. 15, § i. (iioth Street), 81 App. Div. 27; Mul- ^8 Roe ex dem. Brune v. Prideaux, ligan V. Cox, 26 Misc. Rep. 709, 711, 10 East, 184; et infra, under § 116, and see under § 123, infra. The Real Prop. Law. 5* Vide supra, under § 20. 59 Powcey v. Bowen, I Chan. Cas. 55 Cruise, Dig. tit. 5, chap. 2, § 31, 23; Campbell v. Leach, Amb. 740; cf. note; 2 Black. Comm. 274. Alienations § 116, infra. by tenants by the curtesy or in dower ^o gy 2 R. L. 267, Columbia Col- regulated by 6 Edw. I, chap. 3 ; 32 lege was restricted to leases for sixty- Hen. VIII, chap. 28 ; re-enacted in three years (2 R. L. 267 ; et vide supra, New York in 1787, 2 J. & V. 98, loi; pp. 140, 145) ; but a lease for lives I K. & R. 44; I R. L. 52. could not begin in future. 2 Sugd. 56 1 R. S. 739, § 145 ; Sparrow v. Pow. 344. 430 Trustees' Leases. Hfe.^^ If a trustee had a life estate, he was within the section last denoted. ^^ Trustees' Leasing Power. An application to the court on a trustee's lease beyond five years is desirable- The law concerning the quan- tum of a trustee's estate under the 3d subdivision of section 76 of this act, is not so definitively determined as it should be seventy years after the Revised Statutes. In a conveyance or devise to trustees, the power of the trustees to grant leases depends primarily on the question whether or not they take a fee, or an estate pur autre zne.^^ If the conveyance to them contain a power to trustees to make leases of any duration beyond twenty-one years, then the question arises how far this power is controlled by section 123 of this act,^ restricting tenants for life to leases for twenty-one years. If the settlement is made since 1895, then whether the act of 1895 or this section applies to an express trust with power to make leases beyond five years, will also have to be considered. The language of this section (86) would seem to confine its operation to those trusts which arise under the 3d subdivision of section 76 of this act,®^ and not to refer to trustees of the trusts arising under the 2d subdivision of section 76.^^ It has been held that trustees under the 2d subdivision of section 76 of this act take a fee simple,^^ and, therefore, that they may make leases of any duration.®* If trustees, under the 3d subdivision of section 76, have a base fee, then they undoubtedly fall within the general rule that tenants in fee may make leases of urban lands of definite duration, but subject to the determination of the base fee, under the maxim cessante statu primitivo, cessat derivativus-^^ As the base fee must determine at the expiration of the trusts, the lease could not exceed two lives, which is an argument for the construction that trustees of such trusts take an estate pur autre vie and not a qualified or base fee. If such trustees have only an estate pur autre vie, then the .leases may not extend beyond the lives of cestuis que vie,'"' in- *i I R. S. 733, § 87 ; § 123, infra. The ^^ Hawley v. James, 16 Wend, at Real Prop. Law. pp. 153, 155 ; Matter of McCaffrey, 50 ®2 See the discussion on this point, Hun, 371, 375 ; Corse v. Corse, 144 N. supra, pp. 273, 369, 409. Y. 569, 572; cf. Greason v. Kettletas, "3 Supra, pp. 273, 409. 17 id. 491, as to common law. e*The Real Prop. Law; cf. i R. S. «» Challis, 51, 254; Matter of City of 733, § 87- New York (iioth Street), 8i App. "5 Supra, pp. 36s, 376. Div. 27, 32. ^ Supra, pp. 365, 374. ™ Matter of City of New York ^'^ Supra, pp. 365, 376. (lioth Street), 81 App. Div. 27; Mat- Trustees' Leases. 431 dependently of the act of 1895 and this section, which are enabling acts, and under them trustees of an estate pur autre vie are author- ized to make leases for five years, which will be' good against the remaindermen. In the case where the trustee has a fee with general leasing powers, the act of 1895 and this section would be simply supererogatory, and may be construed as intended for the general protection of such trustees. The uncertainty of the power of trus- tees under the 3d subdivision of section 76 to make leases of definite duration,^! received emphasis in a recent case, where tenants ques- tioned their power to make a lease for twenty-one years. The abstract question was not, however, decided.'^^ Is this Section Retroactive or Unconstitutional? How far this section, or chapter 886, Laws of 1895, is retroactive and may lawfully em- power trustees to make leases to bind vested estates in remainder, or those future estates limited to take effect after the trustees' own estate has terminated, is questioned in a late work on constitutional grounds.'^^ The acts enabling life tenants to make leases to bind reversioners and remaindermen are, however, very well known in the common law, and as, where a rent is reserved, it runs with the reversion, it is difficult to perceive how a power of this kind may be said to infringe vested rights. Where the rights in remainder are expressly subject to a power to lease, the power overrides the estate in remainder, or the remainder is subject to the power. This Section) Does not Enable- Leases of Agricultural Lands Prohibited by the Constitution. As the Constitution restricts leases of agricultural lands to terms of twelve years,''* this section clearly cannot enable trustees of such lands to make leases beyond twelve years, even pursuant to an order of the court, provided for in this section. Code of Civil Procedure. The section of the Code of Civil Procedure relative to the lease of property of infants and other incompetent persons''^ seems to have no direct reference to leases by trustees of an express trust. ter of McCaffrey, 50 Hun, 371, 374 ; 28, 1902, Truax, J. ; but see Matter of Gomez V. Gomez, 147 N. Y. 195, 200; City of New York (iioth Street), 81 Matter of Hoysradt, 20 Misc. Rep. App. Div. 27; Neiderstein v. Cusick, 265 ; Matter of Armory Board, 29 id. 178 N. Y. 543. 174, 30 Code Civ. Proc. R. 123. 73 Chapl. Exp. Trusts & Pow., § 462. ''1 See the doubt expressed in the ''* Supra, pp. 78, 144, 145. contract in Niederstein v. Cusick, 83 ^^ § 2348, Code Civ. Proc. and chap. App. Div. 36, 178 N. Y. 543. 154, Laws of 1903. T2In re Duncan, N. Y. L. J., Feb. 432 Beneficiaries' Notice of Alienation. § 87. Notice to beneficiary and other persons interested where real property affected by a trust is conveyed, mortgaged or leased and procedure thereupon. — The supreme court shall not grant an order under either of the last two preceding sections unless it appears to the satisfaction of such court that a written notice stating the time and place of the application therefor has been served upon the beneficiary of such trust, and every other person in being having an estate vested or contingent in reversion or remainder in said real property at least eight days before the making thereof, if such bene- ficiary or other person is an adult within the state or if a minor, lunatic, person of unsound mind, habitual drunkard or absentee until proof of the service on such beneficiary or other person of such notice as the court or a justice thereof prescribes. The court shall appoint a guardian ad litem for any minor and for any lunatic, person of unsound mind or habitual drunkard who shall not be represented by a com- mittee duly appointed. The application must be by petition duly verified which shall set forth the condition of the trust estate and the particular facts which make it necessary or proper that the application should be granted. After taking proof of the facts, either before the court or a referee and hearing the parties and fully examining into the matter, the court must make a final order upon the application. In case the application is granted, the final order must authorize the real property affected by the trust or some portion thereof, to be mortgaged, sold or leased, upon such terms and conditions as the court may prescribe. In case a mort- gage or sale of any portion of such real property is author- ized, the final order must direct the disposition of the pro- ceeds of such mortgage or sale and must require the trustee to give bond in such amount and with such sureties as the court directs, conditioned for the faithful discharge of his trust and for the due accounting for all moneys received by him pursuant to said order. If the trustee elects not to give such bond, the final order must require the proceeds of such mortgage or sale to be paid into court to be disposed of or invested as the court shall specially direct. Before a mort- gage, sale or lease can be made pursuant to the final order, the trustee must enter into an agreement therefor, subject to the approval of the court and must report the agreement to the court under oath. Upon the confirmation thereof, by order of the court he must execute as directed by the court a Beneficiaries' Notice of Alienation. 433 mortgage, Heed or lease. A mortgage, conveyance or lease made pursuant to a final order granted as provided in this and the last two^ preceding sections shall be valid and ef- fectual against all minors, lunatics, persons of unsound mind, habitual drunkards and persons not in being inter- ested in the trust or having estates vested or contingent in reversion or remainder in said real property, and against all other persons so interested or having such estates who shall consent to such order, or who' having been made parties to such proceeding as herein provided, shall not appear therein and object to the granting of such order. Comment. This section in its present form was enacted by an act ■of 1897, entitled " An act to amend The Real Property Law relative to uses and trusts." '^® Prior to such amendment this section, as originally enacted in The Real Property Law, read as follows: § 87. Notice to beneficiary where trust property is conveyed, mortgaged or leased — The supreme court shall not grant an order under either of the last two preceding sections, unless it appears to the satisfaction of such court that a written notice, stating the time and place of the application therefor, has been served upon the beneficiary of such trust property, at least eight days before the making thereof, if such beneficiary is an adult within the state; or if a minor, lunatic, person of unsound mind, habitual drunkard or absentee, until proof of the service on such person of such notice as the court, or a justice thereof prescribes.''^ Section, how to be read. This section must be read in connection with the two preceding sections.''* ''^ Chap, 136, Laws of 1897. chap. 886, Laws of 1895, pp. 423, 424, '''' Cf. chap. 275, Laws of 1882 ; chap, supra. 26, Laws of 1884; chap. 257, Laws of ''8 Van Wyck v. Richman, 33 Misc. 1886; chap. 209, Laws of 1891, and Rep. 404, 407; cf. §§ 2345-2364, Code Civ. Proc. 28 434 Payment to Trustees Protected. § 88. Person paying money to trustee protected. — A person who shall actually and in good faith pay a sum of money to a trustee, which the trustee as such is authorized to receive, shall ncft be resjjonsible for the proper application of the money, according to the trust ; and any right or title derived by him from the trustee in consideration of the payment shall not be impeached or called in question in consequence of a misapplication by the trustee of the money paid. Formerly i Revised Statutes, 730, section 66: § 66. No person who shall actually and in good faith pay a sum of money to a trustee, which the trustee as such is authorized to receive, shall be responsible for the proper application of such money, according to the trust; nor shall any right or title, derived by him from such trustee, in consideration of such payment, be impeached or called in question, in consequence of any misapplication by the trustee, of the monies paid.^* The Old Law. The old rule that a purchaser from a trustee was bound to see to the application of the purchase money and that it was applied in the furtherance of the trusts,** was always subject to many exceptions.*'- The rule itself was so inconvenient and prejudicial oftentimes that it led to the usual insertion in powers of sale of a clause relieving purchasers from the necessity of see- ing to the application of the purchase money. Mr. Humphreys, a leading reformer in England, just prior to the Revised Statutes of this State, forcibly criticised the old rule, which the Revised Stat- utes consequently abolished.*^ Yet the old rule was oftentimes very beneficial to beneficiaries of trusts, such as infants and per- sons non compotes. The principle that all persons having notice take subject to a trust is not inequitable. But where the trust was to sell and pay debts generally, it was never deemed equitable to apply the rule to purchasers.** A series of acts following the Revised Statutes has in England also relieved purchasers from the rigid application of the common-law rule.** ^9 Repealed, chap. 547, Laws of 1896. *2 j R g 7^0, § 66 ; Humph. Real *" Cruise, Dig. tit. 12, chap. 14, §§ 13, Prop. (1st ed.) 305; Revisers' note to 17, 19. I R. S. 730, § 66. 81 Story, Eq. Juris., § 1125 seq.; *3 2 Lewin, Trusts (Last ed.), 598. Field V. Schieffelin, 7 Johns. Ch. 150; 84 Lgrd St. Leonard's Act, 22 & 23 Elliot V. Merryman, Barnardiston Ch. Vict., chap. 35, § 23; Lord Cranworth's Rep. 78 ; I White & Tudor, Lead. Cas. Act, 23 & 24 id., chap. 145, § 29 ; 44 & in Eq. 72 and notes. 45 id., chap. 41, §§ 36, 71. Payment to Trustees Protected. 435 The Present Law. Now, where the trust authorizes a sale, a pur- chaser from a trustee and other persons under legal obligations to trustees, who shall actually and in good faith pay money to the trustees, are by this section relieved from seeing to the applica- tion of such money. It may be purloined by the trustee and never reach the beneficiaries, but the purchaser or payer is nevertheless discharged, so far as the trust estate is concerned.^ While a bona Ude purchaser is now relieved by this section from the necessity of seeing to the application of the trust purchase money where a trustee is empowered to sell, yet the statutory relief to purchasers extends only to persons clearly within the purview of this section. Where the purchaser has notice of some breach of trust on the part of the trustee, he may rapidly lose the protection of this sec- tion of the statute, and even be held to have participated in the breach of trust.*® In such cases it is obvious that the exception stated in this section has no application, and that the old rule applies with full force. Trustees under Powers in Trust. The original of this section (i R. S- 730. § 66) was formerly expressly applicable to trustees of powers in trust.*'' But section 162 of this act omits a like cross- reference to this section of The Real Property Law. 85 Belmont v. O'Brien, 12 N. Y. 394, & Trust Co., 115 N. Y. 65, 79; Bene- 402 ; Thomas v. Evens, 105 id. 601, 615. diet v. Arnoux, 7 App. Div. i ; revd., 86 Champlin v. Haight, 10 Paige, 274, 154 N. Y. 715 ; Warren v. Union Bank 282, 7 Hill 24s; but reversed on an- of Rochester, 157 id. 259. other point, Moore v. American Loan *'' i R. S. 734, § 102. 436 When Trustees' Estate Ceases. § 89. When estate of trustee ceases — When the purpose for which an express trust is created ceases, the estate of the trustee shall also cease. Formerly i Revised Statutes, 730, section 67: § 67. When the purposes for which an express trust shall have been created, shall have ceased, the estate of the trustee shall also cease.^s Comment on Section 89, Supra. I Revised Statutes 730, section 67, was, in 1875, amended by chapter 545 of the Laws of 1875.^* This amendment is now set out under the next section of The Real Property Law.^* Cessation of Estate of Trustees. In the course of the observations on the text of section 72 of this act, it was stated that if a settle- ment in trust was not immediately executed by the Statute of Uses (27 Hen. VIII, chap. 10), a fee simple estate of the trustee could not become the estate of the beneficial owner, without a conveyance from the trustee, even though all the active duties of the trustees had ceased.®^ It was by reason of this principle that the so-called " vesting acts " were passed in England. Since the Revised Statutes of New York a different rule seems to have obtained, and when the trusts cease the estate of the trustee ceases, without the necessity of any conveyance whatever.®^ The rule stated in this section is not to be confused with the older principle referred to by Chancellor Kent, " that a trust estate is not to continue beyond the period required by the purposes of the trust. "^^ This was a common principle of construction where the estate of the trustee was indeterminate.** But where the estate of the trustees was in fee a conveyance was required, before the Revised Statutes, to divest it, and this the beneficial owners might call for when the trusts were fulfilled.*^ It is very doubtful whether this section, which embodies a former rule of construction in equity, affords a real argument against the proposition that a trustee of an express trust takes a fee, although it favors the argument that he should 88 Repealed, chap. 547, Laws of 1896. the Petition of Livingston, 34 N. Y. 89 See this act set out under the 555, 567. next section, infra. 93 4 Coram. 233. 90 § 90, infra, p. 438. 94 Doe, Lessee of Poor, v. Considine, 91 Supra, pp. 354, 412. 6 Wall. 458, 471, and cases there cited ; ^^ Supra, pp. 354, 369; Matter of Fisher v. Fields, 10 Johns, at p. 505. 95 Supra, pp. 354, 407. When Trustees' Estate Ceases. 437 take a lesser estate whenever that suffices.®^ A deed to a corpora- tion formed for a day may yet convey a fee,^''' and there is much analogy between the estate of a corporation and that of a trustee. In the Roman Law a trustee was a quasi corporation. Retroactive Application of this Section. This provision of the statute has been held to apply to trusts created before the Revised Statutes took effect,®* and also to apply to powers in trust.®® 88 Supra, pp. 273, 369, 409. ^ Manier v. Phelps, 15 Abb. N. C. 97 Nicoll V. N. Y. & Erie R. R. Co., 123 ; Bruner v. Meigs, 64 N. Y. 506, 12 N. Y. 121. 517. 98 January i, 1830; Bellinger v. Shafer, i Sandf. Ch. 293, 296. f 438 Termination of Trusts for Creditors. § 90. Termination of trusts for the benefit of creditors. — Where an estate or interest in real property has heretofore vested or shall hereafter vest in the assignee or other trustee for the benefit of creditors, it shall cease at the expiration of tw^enty- five years from the time when the trust was created, except where a different Hmitation is contained in the instrument creating the trust, or is especially prescribed by law. The estate or interest remaining in the trustee or trustees shall thereon revert to the assignor, his heirs, devisee or assignee, as if the trust had not been created. Formerly chapter 545 of the Laws of 1875, as follows : CHAP. 545. An Act to amend section sixty-seven of article two, chapter one, part two, title two of the revised' statutes in relation to trusts. Passed June 7, 1875, The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Section sixty-seven of article two, chapter one, part two, title two of the revised statutes, is hereby amended so as to read as follows : § 67. When the purposes for which an express trust shall have been created shall have ceased, the estate of the trustees shall also cease, and where an estate has been conveyed to trustees for the benefit of creditors and no dif- ferent limitation is contained in the instrument creating the trust, such trust shall be deemed discharged at the end of twenty-five years from the creation of the same; and the estate conveyed to trustee or trustees and not granted or conveyed by him or them shall revert to the grantor or grantors, his or their heirs or devisees, or persons claiming under them, to the same effect as though such trust had not been created.^ Comment on Section go. This provision of this section of the stat- ute had its origin in chapter 545, Laws of 1875, just set out in full, which it superseded. The necessity of that act was so mani- fest as to cause the court to construe it as retroactive, affecting old assignments made long prior to 1875.^ Assignments for the benefit of creditors were frequently made in the early part of this century by farmers and others, and in some cases the assignors or their descendants remained in peaceable and undisturbed posses- sion of their assigned estates, but without any proof of the dis- charge or satisfaction of such assignments of record. Under the 1 Repealed, chap. 547, Laws of i8g6. ^ j^ip v. Hirsch, 103 N. Y. 565. Termination of Trusts for Creditors. 439 former law the fee simple title of trustees descended to their heirs,* or passed under a devise of the trustee subject to the trusts.* Sub- sequently to the Revised Statutes the legal estate might, under certain circumstances, vest in the creditors as the persons bene- ficially entitled.^ In either event an old general assignment of record was a cloud on the title of the assignor's descendants, and, consequently, the act of 1875 was not unwelcome, as the assignee's descendants and the creditors' descendants were usually scattered over the Union, and by reason of early migrations and changes of neighborhood so common in this country, releases were almost im- possible to obtain. Devolution of Trust Estate under Old Law. Before the Revised Stat- utes not all estates of surviving trustees devolved on their heirs ; for by express limitation the estate of the surviving trustee might be one for years or for his own life, or else one pur autre vie^ and then such estate pursued the course prescribed for other estates of like quantity. But where trustees had a fee simple, the ordinary rule of descents applied, in case the surviving trustees did not devise it subject to the trusts.'' 3 Infra, and at p. 441, under § 91 of ^ Supra, p. 407. this act. ■? Note of Revisers, with i R. S. 730, * Jackson v. De Lancey, 13 Johns. § 68 ; Anderson v. Mather, 44 N. Y. S37, SS4- 249 ; Hawley v. Ross, 7 Paige, 103, ^ Supra, The Real Prop. Law, § 72. 107; cf. 2 Spence, Eq. Juris. 364. 440 Trustees' Estate not to Descend, § 91. Trust estate not to descend. — On the death of the last surviving or sole surviving trustee of an express trust, the trust estate shall not descend to his heirs nor pass to his next of kin or personal representatives; but in the absence of a contrary direction on the part of the person creating the same, such trust, if unexecuted, shall vest in the supreme court, virith all the powers and duties of the original trustee or trustees, and shall be executed by some person appointed for that purpose under the direction of the court, but who shall not be appointed until the beneficiary or beneficiaries shall have been brought into court by such notice and in such manner as the court or a justice thereof may direct; and the person so appointed shall give such security as the court may require, and shall be subject to the same require- ments of law as to accounting and the administration of the trust as are testamentary trustees; and shall be entitled to such compensation for his services by way of commissions as the court appointing him shall determine, which shall in no case exceed that now allowed by law to executors and ad- ministrators, besides his just and reasonable expenses in the matter in which he is appointed. Prior to chapter 151, Laws of 1902, the above section read as follows : § 91. Trust estate not to descend. — On the death of the last surviving or sole trustee of an express trust, the trust estate shall not descend to his heirs nor pass to his next of kin or personal representatives ; but in the absence of a contrary direction on the part of the person creating the same, such trust, if unexecuted, shall vest in the supreme court, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court, who shall not be appointed until the beneficiary thereof shall have been brought into court by such notice in such manner as the court or a justice thereof may direct.* Formerly i Revised Statutes, 730, section 68: § 68. Upon the death of the surviving trustee of an express trust, the trust estate shall not descend to his heirs, nor pass to his personal representatives; but the trust, if then unexecuted, shall vest in the court of chancery, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose, under the direction of the court.^ The Revised Statutes. The 68th section of the Revised Statutes on Uses and Trusts first changed the common-law rule just indi- 8 Amended, chap. 151, Laws of 1902. » Repealed, chap. 547, Laws of 1896. Trustees' Estate not to Descend. 441 cated, in respect of trusts created thereafter," and, on the death of surviving trustee, vested the estate in the (Supreme)^^ Court as an unexecuted trust.^^ But such section has no appHcation to impHed or constructive trusts.-'^ It applies only to unexecuted express trusts,** where the estate vests in, or devolves on, the court, and not in a new trustee appointed by the court.*' The same construc- tion applies to this section of the present act.*® The Quantity of Trustees' Estate under this Statute. The quantity of the legal estate of a trustee of the four express trusts has been before considered.*^ If there is more than one trustee, the estate is in joint tenancy, and on the death of one vests in, or devolves on, the survivor or survivors.*® But the above section of this act (91) provides only for the devolution of the legal estate in the event of the death of the sole surviving trustee. It is a " vesting act." At common law, when trustees hold in fee, if the trust is executed, and reversioners extinct, the trustees' estate does not escheat if cestuis que trustent all die without representatives, but becomes absolute; and in the absence of any contrary provision of law such would be the rule here.*® Where One Nominated Trustee Declines. Where one of several trus- tees disclaims, the other is sole trustee,^* and, on his death, the estate vests in the court under the above section.^* The Supreme Court as Trustee. In the absence of a trustee the Su- preme Court has inherent power to execute a trust, and will take 10 Supra, p. 439 ; Anderson v. i* The Real Prop. Law, § 91. Mather, 44 N. Y. 249 ; Hawley v. Ross, i'' Supra, pp. 273, 369, 409. 7 Paige, 107 ; Berrien v. McLean, Hoff. i^ § 56, The Real Prop. Law, supra. Ch. 420. 19 See Attorney-General ex rel., etc. 11 Invested by the Constitution of v. Reformed Dutch Church, 36 N. Y. 1846 with the powers and jurisdiction 452, affg. 33 Barb. 303, where trustees of the chancellor. Vide infra, under had undevised surplus. next section. 20 King v. Donnelly, s Paige, 45 ; 12 Matter of Petition of Waring, 99 Clemens v. Clemens, 60 Barb. 636 ; N. Y. 114; Clark v. Crego, 47 Barb. Burrill v. Sheil, 2 id. 457; cf. Stewart 599; affd., 51 N. Y. 646; Brater v. v. Ackley, 52 id. 283. This was so at Hopper, 77 Hun, 244 ; Button v. Hem- common law. In the Matter of Sie- mens, 92 App. Div. 40. venson, 3 Paige, 420. 13 Johnson v. Fleet, 14 Wend. 176. 21 McCosker v. Brady, i Barb. Ch. 1* Matter of Petition of Waring. 99 329 ; Mulry v. Mulry, 89 Hun, 531. N. Y. 114. See remarks on "Vesting Acts "' un- is Brater v. Hopper, 77 Hun, 244. der the next section. 442 Trustees' Estate not to Descend. upon itself its execution.^ A trustee, successor to the court, is bound by the proceedings taken by the court before his appoint- ment.^ But the above section of this act (§ 91) provides only for the vesting, or devolution, of title in one event only, the death of a surviving trustee of an unexecuted trust.^* Trustees of Mortgages. How far a power of sale passes to an trustee of a mortgage, the mortgage security did not vest in the Supreme Court, it being personal property.^ But this rule is now modified by statute, and a like rule obtains as on the death of a surviving trustee of a trust of real property.^^ Power of Sale in Trust. Formerly, on the death of a sole surviving administrator with the will annexed is discussed elsewhere.^^ Notice. Remaindermen are entitled to notice of the application under this section.^® 22 Matter of Reinisch, 20 App. Div. ^5 Bucklin v. Bucklin, i Abb. Ct. 416; Rogers v. Rogers, in N. Y. 228; App. Dec. 242. Greenland v. Waddell, 116 id. 234, 28 Chap. 185, Laws of 1882. Now 242; Kirk V. Kirk, 137 id. 510; Farm- § 8, The Personal Prop. Law, amended ers' Loan & Trust Co. v. Hughes, 11 chap. 150, Laws of igo2. Sed cf. Hun, 130. And see next section of Horsfield v. Black, 40 App. Div. 264; this act. Wetmore v. Wetmore, 44 id. 52; 23 Kirk V. Kirk, 137 N. Y. 510. Jewett v. Schmidt, 83 id. 276. 24 Brater v. Hopper, yy Hun, 244 ; 27 Page 447 ; Campbell v. Jennings, Matter of Post, 30 Misc. Rep. SSI. 22 Misc. Rep. 406, and cases cited. 28 Matter of Welch, 20 App. Div. 412. Trustees' Resignation, Removal, and Appointment. 443 § 92. Resignation or removal of trustee and appointment of successor — The supreme court has power, subject to the regulations estabhshed for the purpose in the general rules of practice : 1. On his application by petition or action, to accept the resignation of a trustee, and to discharge him from the trust on such terms as are just. 2. In an action brought, or on a petition presented, by any person interested in the trust, to remove a trustee who has violated or threatens to violate his trust, or who is insol- vent, or whose insolvency is apprehended, or who for any other cause shall be deemed to be an unsuitable person to execute the trust. 3. In case of the resignation or removal of a trustee, to appoint a new trustee in his place, and in the meantime, if there is no acting trustee, to cause the trust to be executed by a receiver or other officer under its direction. This section shall not apply to a trust arising or resulting by implication of law, nor where other provision is specially made by law, for the resignation or removal of a trustee or the appointment of a new trustee. Formerly i Revised Statutes, 730, sections 69, 70 and 71, and i Revised Statutes, 731, section 72: § 69. Upon the petition of any trustee, the court of chancery may accept his resignation, and discharge him from the trust, under such regulations as shall be established by the court for that purpose, and upon such terms, as the rights and interests of the persons interested in the execution of the trust, may require.^^ § 70. Upon the petition or bill of any person interested in the execution of a trust, and under such regulations as for that purpose shall be estab- lished, the court of chancery may remove any trustee who shall have vio- lated or threatened to violate his trust, or who shall be insolvent, or whose insolvency shall be apprehended, or who, for any other cause, shall be deemed an unsuitable person to execute the trust.^o § 71. The chancellor shall have full power to appoint a new trustee, in place of a trustee resigned or removed ; and when, in consequence of such resignation or removal, there shall be no acting trustee, the court, in its dis- cretion, may appoint new trustees, or cause the trust to be executed by one of its officers, under its direction.31 § 72. The three last sections shall extend only to cases of express trusts.'^ Resignation of Trustees. The section relative to resig^nation of trustees relates only to cases where the trustee has become vested 29 Repealed, chap. S47, Laws of 1896. ^i Repealed, chap. 547, Laws of 1896. 30 Repealed, chap. 547, Laws of 1896. 444 Trustees' Resignation, Removal, and Appointment. with the trust estate, or has accepted the trusts, and not to cases where nominees do not accept trusts confided to them.^^ Discharge of Trustees. Where a trustee appHes to be discharged, assigning no cause, but a wish to be relieved, the court will impose terms as a condition of discharge, such as costs of the petition and of appointment of a new trustee, and that the outgoing trustee be not allowed commissions.^^ Where trustee has ailready received a legacy and commissions, it is improper to accept his resignation without good and sufficient cause shown.^* A trustee having accepted the trusts cannot discharge himself from liability by a resignation merely. He must either be discharged from the trust, by virtue of a special provision in the instrument creating the trusts, or by the order or decree of the court, or with the general consent of all persons interested in the execution of the trust.^- Eesignation of Testamentary Trustee. A testamentary trustee may, under certain circumstances, resign and be discharged in the Sur- rogates' Courts,*^ or in the Supreme Court.^'' Compensation of Trustees. Although trustees who serve to the end of a trust are entitled to the statutory compensation, where • a trustee is permitted to resign before completion of the trust, he must accept the discharge on such terms as the court in its dis- cretion imposes.^* Removal of Trustee. The Court of Chancery had, independently of statute, jurisdiction to remove trustees who became disqualified^* or who had misbehaved.** The Revised Statutes in this respect did not confer a new judicial power, but declared the pre-existing 32 In the Matter of Stevenson, 3 1879 ; Matter of Abbott, 39 Misc. Rep. Paige, 420 ; cf. King v. Donnelly, 5 id. 760. 46, and Estate of Gilbert, 3 N. Y. St. 37 Matter of Cutting, 49 App. Div. Rep. 208, as to surrogate's practice. 388. 33 Matter of Jones, 4 Sandf. Ch. 38 Matter of Allen, 96 N. Y. 327; 61S. Parker v. Allen, 36 N. Y. St. Rep. 3* Craig V. Craig, 3 Barb. Ch. 76, 671 s. c, 14 N. Y. Supp. 265. 100. 39 Lake v. De Lambert, 4 Ves. 492 ; 35 Cruger v. Halliday, 11 Paige, May v. May, 167 U. S. 324. 314; Gilchrist v. Stevenson, 9 Barb. •*" Ex parte Reynolds, 5 Ves. 707; 9; Thatcher v. Candee, 4 Abb. Ct. Millard v. Eyre, 2 Ves. Jr. 94; Story, App. Dec. 387. Eq. Juris., §§ 1287, 1289; Hill, Trus- 3SCode Civ. Proc, § 2814; chap, tees, 191; The People v. Norton, 9 N. 3S9, Laws of 1870; chap. 406, Laws of Y. 176; Disbrow v. Disbrow, 46 App. Div. III. Trustees' Resignation, Removal, and Appointment. 445 law.*^ Under the Constitution of 1846*^ the Supreme Court received the jurisdiction in equity formerly exercised by the chancellors.** The removal of any trustee may be obtained in a proceeding based on a petition to the Supreme Court,** or in an action,*^ if property questions are at issue. Removal of Testamentary Trustees. Testamentary trustees may be removed under certain circumstances by the surrogates.** Where the same person is both executor and trustee he may be removed from his trusteeship by the Supreme Court, even though his duties of executor are not ended or disturbed.*^ The removal of a mere executor is not concurrent, but vested exclusively in the surrogates in the first instance.** Causes of Removal. A trustee will not be removed for every viola- tion of duty or even breach of trust, if the fund is in no danger. The power of removal of trustees appointed by deed or will ought to be exercised sparingly by the court.*^ But where trustees are unsuitable persons, irreconcilable or hostile to the purposes of the trust, they may be removed.®" Appointment of New Trustee. The jurisdiction of the Court of Chancery, before the Revised Statutes, extended to both the re- moval and the appointment of new trustees.^^ Under this section *iln the Matter of the Mechanics' Civ. Proc, §§ 2817, 2818; Matter of Bank, 2 Barb. 446 ; Wood v. Brown, McGillivray, 138 N. Y. 308 ; Matter of 34 N. Y. 337, 341; cf. Revisers' note Havemeyer, 3 App. Div. 519; Matter with I R. S. 730, § 69. of Smith, 26 N. Y. St. Rep. 235 ; *2 Const, of 1846, art. VI. s. c, 7 N. Y. Supp. 327; Matter of *3 Const, of 1894, art. VI ; 2 R. S. Scott, 49 App. Div. 130; Matter of 173, § .36; chap. 280, Laws of 1847; Mallon, 38 Misc. Rep. 27. Onderdonk v. Mott, 34 Barb. 106 ; « Quackenboss v. Southwick, 41 N. Gardner v. Ogden, 22 N. Y. 327, 332. Y. 117; cf. Wood v. Brown, 34 id. ** § 92, supra; Quackenboss v. 337, 340; Leggett v. Hunter, 25 Barb. Southwick, 41 N. Y. 117; Matter of 81; s. c, 19 N. Y. 445. Livingston, 34 id. S5S; Bronson v. « Greenland v. Waddell, 116 N. Y. Bronson, 48 How. Pr. 481 ; Matter of at p. 243. Cutting, 49 App. Div. 388, 391; Mat- *9Elias v. Schweyer, 13 App. Div. ter of Baltes, 51 id. 49i- 336, 340; Dow v. Dow, 45 N. Y. St. *5§ 92, supra; Matter of Cutting, Rep. 5; s. c, 18 N. Y. Supp. 222; 49 App. Div. 388, 391; Matter of cf. Matter of Petition of Morgan, 63 Baltes, SI id. 491 ; Leggett v. Hunter, Barb. 621. 19 N. Y. 445 ; cf. In re Van Wyck, i so Disbrow v. Disbrow, 46 App. Div. Barb. Ch. 565; King v. Donnelly, 5 iii, and cases there cited. Paige, 46, as to old practice. 5i Supra, p. 444; People v. Norton, « Chap. 482, Laws of 1871 ; Code 9 N. Y. 176. 446 Trustees' Resignation, Removal, and Appointment. the present judicial power is explicit.^^ But the power does not extend to a case where a sole surviving trustee dies and the estate devolves on the court to execute the trust under the preceding section of this act.°^ Appointment by Surrogate. Where a sole testamentary trustee dies, becomes lunatic, or is removed or allowed to resign, the surrogates also have the jurisdiction to appoint a successor trustee.^* Section 92 Does not Apply to Implied or Constructive Trusts. This sec- tion has no application to trustees of implied^^ or constructive^® trusts.^^ Trust Cannot Fail for Want of a Designated Trustee. As a trust is never allowed to fail for want of a trustee,^* a case may arise, not under this section, where all the persons named as trustees are absent, or refuse to accept the ofifice. In such a case the Supreme Court, under its general jurisdiction, has power to execute the trust or to appoint new trustees;^® so it has in a case where the settlor fails to nominate any trustee.* But where a nominee re- nounces and never accepts a trust, it seems he cannot recall his renunciation but must be reapf)ointed de novo.^ Conveyance from Outgoing Trustee. How far a conveyance from an outgoing trustee to one designated by an order of the Supreme Court as his successor, is now necessary in order to carry the legal title to the new trustee, is not declared in this statute. At common law " an order or decree of the Court of Chancery (appointing a new trustee) did not have the effect to transfer the legal title to land or real estate." ® To remedy the inconvenience attached to ^2 Quackenboss v. Southwick, 41 N. id. at p. 102 ; Holland v. Alcock, 108 Y. 117, 121; cf. May v. May, 167 U. S. id. at p. 330; Kirk v. Kirk, 125 id. 310, as to general equitable power of 506; Rose v. Hatch, id. 427; Cross v. courts. U. S. Trust Co., 131 id. 330, 350; 63 § 91, supra; Brater v. Hopper, 77 Woodward v. James, 115 id. 346, 357; Hun, 244. Greenland v. Waddell, 116 id. 234,242. B* Code Civ. Proc, § 2818. 69 King v. Donnelly, 5 Paige, 46 ; 56 Implied trusts, supra, p. 358. Rogers v. Rogers, iii N. Y. 228; 66 Constructive trusts, supra, p. 357. Greenland v. Waddell, 1 16 id. 234, 67 Matter of Livingston, 34 N. Y. 242; Kirk v. Kirk, 137 id. 510. 555 ; Quackenboss v. Southwick, 41 ^ De Barante v. Gott, 6 Barb. 492. id. 117, 121. ^1 In the Matter of Van Schoon- 68 McCartee v. Orphan Asylum, 9 hoven, 5 Paige, 559. Cow. at p. 484; Downing v. Marshall, *2 Williams, Real Prop. 172; Lewin, 23 N. Y. at p. 382; Levy v. Levy, 33 Trusts (ist ed.), 602 et seq.; per Wal- Trustees' Resignation, Removal, and Appointment. 447 this rule, the so-called " vesting acts " were passed in England,*^ generally dispensing with an actual conveyance. Formerly the practice in New York was to have the outgoing trustee convey to his successor,^ and not to rely solely on an order or judgment of the court substituting one trustee for another. But it seems now to be assumed oftentimes, that the order substituting one trustee for another is sufficient to carry title without any conveyance from the outgoing trustee.® Where a sole trustee dies the statute vests the estate in the court under the 91st section of this act; that sec- tion is a vesting act. When Trustee's Act Requires Concurrence of All. Where the concur- rent decision or action by two or more trustees is directed by a settlor of an estate, part of the trustees cannot do the act, and on the removal of one, his place must be supplied.®* Power of Sale, if Imperative, Passes to New Trustee; Otherwise if Discre- tionary. If a power of sale is discretionary, it does not pass to an administrator with the will annexed; otherwise if imperative.*^ worth, C, In the Matter of Van *5 Cf. § 89, supra, as to estate of Wyck, I Barb. Ch. 569, 570 ; Wilson v. outgoing trustee, and Farrar v. Mc- Wilson, id. 592, 594; cf. Albany City Cue, 89 N. Y. at p. 144. Bank v. Schermerhorn, Clarke, 297 ; s* Per Walworth, C, In the Matter Union Nat. Bank of Albany v. War- of Van Wyck, i Barb. Ch. 569, 570; ner, 12 Hun, 306; Chautauque Co. cited, Greenland v. Waddell, 116 N. Bank v. Risley, 19 N. Y. 369, 374. Y. at p. 243 ; cf. Burrell v. Shell, 2 *3 7 Anne, chap. 19 ; 6 Geo. IV, Barb. 457 ; King v. Donnelly, 5 Paige, chap. 16; II id., chap. 60, and many 46. similar acts of later date; 15 & 16 ^^ Greenland v. Waddell, 116 N. Y. Vict., chap, ss, §§ 8, 9; 13 & 14 id., 234, 240; Mott v. Ackerman, 92 id. chap. 60. See Williams, Real Prop. 539, SS3, 554. Vide infra, under 172. §§ 146 and 162, The Real Prop. Law. 6* Leggett V. Hunter, 19 N. Y. at p. 448; Perry, Trusts, § 284. 448 Charitable Uses. § 93. Grants and devises of real property for charitable purposes. — A conveyance or devise of real property for religious, educational, charitable dr benevolenf uses, which is in other respects valid, is not to be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument making such conveyance or devise. If in such instrument, a trustee is named to execute the same, the legal title to the real prop- erty granted or devised shall vest in such trustee. If no person is named as trustee, the title to such real property vests in the supreme court, and such court shall have control thereof. The attorney-general shall represent the bene- ficiaries in such cases and enforce such trusts by proper proceedings. Taken from chapter 701, Laws of 1893, as follows: CHAP. 701. An Act to regulate gifts for charitable purposes. Approved by the Governor May 13, 1893. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. No gift, grant, bequest or devise to religious, educational, charitable, or benevolent uses, which shall, in other respects be valid under the laws of this state, shall or be deemed invalid by reason of the indefinite- ness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If in the instrument creating such a gift, grant, bequest or devise there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes shall vest in such trustee. If no person be named as trustee then the title to such lands or property shall vest in the supreme court. § 2. The supreme court shall have control over gifts, grants, bequests and devises in all cases provided for by section one of this act. The attorney- general shall represent the beneficiaries in all such cases and it shall be his duty to enforce such trusts by proper proceedings in the court. § 3. This act shall take effect immediately.^^ Section 2 of the foregoing act is now amended by the following important act: , ^ 68 Not repealed by chap. 547, Laws of 1896. Charitable Uses. 449 CHAP. 291. An Act to amend chapter seven hundred and one of the laws of eighteen hundred and ninety-three, "entitled "An act to regulate gifts for charitable purposes." Became a law, April 5» 1901, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Section two of chapter seven hundred and one of the laws of eighteen hundred and ninety-three is hereby amended so as to read as follows : § 2. The supreme court shall have control over gifts, grants, bequests and devises in all cases provided for by section one of this act and, whenever it shall appear to the court that circumstances have so changed since the execu- tion of an instrument containing a gift, grant, bequest or devise to religious, educational, charitable or benevolent uses as to render impracticable or im- possible a literal compliance with the terms of such instrument, the court may, upon the application of the trustee or of the person or corporation hav- ing the custody of the property, and upon such notice as the court shall direct, make an order directing that such gift, grant, bequest or devise shall be administered or expended in such manner as in the judgment of the court I will most effectually accomplish the general purpose of the instrument, with- I out regard to and free from any spetiK'c restriction, limitation or direction | contained therein ; provided, however, that no such order shall be made until j the expiration of at least t wenty-five y ears after the execution of the instru-t ment or without the consent of the donor or grantor of the property, if he I be living. The attorney-generaf shall represent the beneficiaries in all such \ cases, and it shall be his duty to enforce such trusts by proper proceedings in the court. § 2. This act shall take effect immediately. Effect of Section 93, Supra. The insertion of a portion of the act of 7893 in the article on Uses and Trusts vi^as designed to restore the charitable uses of the common law; for, the uses authorized and modified by this article are declared not abolished by the sections abolishing other uses.^* If charitable uses are thus revived, such uses must be those which existed at common law and independently of the Statute of Charitable Uses (43 Eliz., chap. 4) ; for that stat- ute fell with the other English statutes not re-enacted in the New s9See The Real Prop. Law, §§ 71, 347, 348; Allen v. Stevens, 22 Misc. 72, 73, supra, and the remarks on pp. Rep. 158, 161 N. Y. 123. 29 450 Charitable Uses. York Revision by Jones and VarickJ* While the statute of Eliza- beth was in force, it was assumed to define all charitable usesJ^ But the term " charitable use " at common law was much more extensive than it was under the Statute of Elizabeth. At common law it was equivalent to " pious," " public " and " charitable " uses.'^^ In this section of this present act, a charitable use must be that of the common law ; not that of 43 Elizabeth, chapter 4. Religious and Pious Uses. A religious or pious use was, before the Statute of Superstitious Uses, a " charitable use." ''^ Now, as " superstitious uses " are unknown to our law,''* such are become clearly " religious uses " within the meaning of this section.^® Educational Uses. " Educational uses " are quondam charitable uses.'^^ " Benevolent uses " indicate a larger scheme than chari- table uses formerly denoted.''^ What uses are now within this section must, one by one, be determined by the courts, for none other may be indefinite under the law of trusts''^ as it stood prior to the act of 1893- What Limitations Saved by this Section. This section was at first thought to refer only to conveyances and devises in trust, valid in other respects save the specified one.''* As the law stood, when the act of 1893 was passed, no trust was valid unless there was (i) a definite and certain beneficiary;*** (2) a use or trust clearly worked TO Laws of 1788, chap. 46 ; 2 J. & V. & Budd, Lead. Cas. Real Prop. 325 ; 282; Levy V. McCartee, 6 Pet. 102, 12 Abb. N. C. 427, note, no; Ayres v. Meth. Epis. Church, 3 ^^ See cases cited by Fowler, Char. Sandf. 351, 367; Potter v. Chapin, 6 Uses, at p. 108. Paige, 639, 650; Smith v. Havens Re- '^^2 Perry, Trusts, § 700. lief Fund Society, 31 N. Y. Law Jour. ^^ Thompson's Exr. v. Norris, 20 N. 1175. J- Eq. 489; Chamberlain v. Steams, ''^ I Spencer, Eq. Juris. 591; and see in Mass. 267; People v. Powers, 147 PP- 36, 37, 107 of my Essay on Char- N. Y. 104, no. itable Uses. ''* Cf. Levy v. Levy, 33 N. Y. at foot T2 See Magill V. Brown, 16 Fed. Cas. of p. ns; 2 Perry, Trusts, § 706; at p. 429, and note to p. 437, for a list Matter of Murray, 34 Misc. Rep. 39; of public and charitable uses inde- Spencer v. Hay Library Assn., 36 id. pendent of 43 Eliz., chap. 4. 393. T3 Shelford, Law of Mortmain, 61 ; '^^ Supra, § 93, p.. 448. 2 Perry, Trusts, § 701. ** Downing v. Marshall, 23 N. Y. T* Ayres v. The Meth. Church, 3 368, 382 ; O'Hara v. Dudley, 95 id. 403 ; Sandf. at pp. 377, 378; Holland v. Riker v. Leo, 115 id. 93; Holland v. Alcock, 108 N. Y. at p. 329; 3 Sharsw. Alcock, 108 id. 312; Tilden v. Green, Charitable Uses. 451 out by the settlor ;®i (3) a limitation valid ynder the section regu- lating perpetuities;^^ for, no express trust or power in trust, even if for charity,*^ could violate that section and yet stand.** Effect of Recent Legislation. As the law stands since the acts of 1893 and 1901, a charitable use may be for the benefit of indefinite or uncertain persons;^ the law to the contrary being thus expressly abrogated. Whether the act of 1893 abolished the former rule, that a charitable use as well as a noncharitable use or trust, must be clearly worked out by the settlor or testator himself, was not clearly decided under the act of 1893..*^ Prior to the above act of 1893 the cy pres doctrine was held to be not a part of the State law of chari- ties,®'' but after that act the tendency was to hold the other way.®* Finally chapter 291 of the Laws of 1901 sets the matter at rest and revived the cy pres doctrine in connection with charitable uses.®^ The act of 1893 has been held to relieve future charitable uses from the operation of the rule against perpetuities,^" so that a chari- 130 id. 29; Read v. Williams, 125 id. N. Y. 123; Matter of Fitzsimmons, 29 560; Murray v. Miller, 85 App. Div. Misc. Rep. 204, 731; Matter of Griflfen, 414; cf. Jay V. Lee, 41 Misc. Rep. 13; 167 N. Y. 71, 81; Smith v. Chese- Trunkey v. Van Sant, 176 N. Y. S35, brough, 176 id. 317, 321 ; Murray v. S40. Miller, 178 id. 316. 81 Owens V. Miss. See. Meth. Epis. ^^ Matter of Scott, 31 Misc. Rep. Church, 14 N. Y. 380, 406 ; Bascomb v. 85 ; Spencer v. Hay Library Assn., 36 Albertson, 34 id. 584, 592; Prichard id. 393. V. Thompson, 95 id. 76, 81 ; Adams v. *'' Bascomb v. Albertson, 34 N. Y. Perry, 43 id. 498 ; cf. Matter of Scott, 584, 590, 592 ; Holland v. Alcock, 108 31 Misc. Rep. 85, since the act, chap. id. 312, 330; Owens v. Missionary 291, Laws of 1893, supra; Murray v. Society, 14 id. 380; Beekman v. Bon- Miller, 8s App. Div. 414; afifd., 178 sor, 23 id. 298; Adams v. Perry, 43 id. N. Y. 316. at p. 498; Cottman v. Grace, 112 id. 82 Levy V. Levy, 33 N. Y. at p. 124 ; 299, 306 ; Tilden v. Green, 130 id. 29. Bascomb v. Albertson, 34 id. 584 ; ^ Allen v. Stevens, 161 N. Y. 123 ; Cottman v. Grace, 112 id. 299, 306, Racine v. Gillet, N. Y. L. J. for March 307 ; Cruikshank v. Home for the 30, 1901 ; i Columbia Law Rev. 400, Friendless, 113 id. 337, 350; People v. 402. Simonson, 126 id. 299, 307. ^^ Supra, p. 449; and see a discus- es Tilden v. Green, 130 N. Y. 29, et sion of this act 2 Col. Law Rev. 10. vide cases cited, jM/i>-a, under this 90 Spencer v. Hay Library Assn., 36 section. Misc. Rep. 393 ; Allen v. Stevens, 161 ** Holland v. Alcock, 108 N. Y. 312. N. Y. 123; Matter of Scott, 31 Misc. 85 Spencer v. Hay Library Assn., 36 Rep. 85 ; Matter of Fitzsimmons, 29 Misc. Rep. 393; Allen v. Stevens, 161 id. 204, 731; Matter of Griffen, 167 N. 452 Charitable Uses. table use or trust need not now correspond with the statute directed against the unlawful suspension of the power of alienation,^! except as to the time of vesting in possession. Trustees of Charity. The act of 1893 provides that, where there is a definite trustee of a charitable use, the legal title shall vest in such trustee. But where the trustees are not designated to establish a charity or refuse to accept under a will or are incapable for some reason to take or hold, the court will not let the charity perish, but will fill their places or compel them to convey.®'' Acts not Retroactive. The acts of 1893 and 1901, set out above under this section, are not retroactive.®^ Is a Charitable Trust Well Limited now an Express Trust? Before the act of 1893 a trust for a charity was usually valid only as a power in trust,®* where the title to the lands descended to the heirs of tes- tator, or remained in the heirs of grantor, subject to the execution of the trust as a power.®" By reason of the language of the act of 1893, and more particularly of this section of The Real Property Law, a question arises whether a use specified in this section is not now become an express trust where there is a designated trustee, and no longer a power in trust, notwithstanding sections 76 and 79 of this act.®® But for all the purposes of the trust, it matters little whether a charitable use is classed as an express trust under section 76 of this act or as a power in trust.®'' Cy Pres Doctrine Applies to Powers, when. Although the doctrine of cy pres has since the Revised Statutes been held to have no applica- y. 71, 81 ; Smith v. Chesebrough, 176 N. Y. 366, 380 ; Adams v. Perry, 43 id. 317, 321; sed. cf. Hall v. Pearson, id. 487; Cottman v. Grace, 112 id. 299, 36 App. Div. at p. 237. 306, 307; Erwin v. Hurd, 13 Abb. N. 91 § 32, The Real Prop. Law. C. 91 ; Read v. Williams, 125 N. Y. 92 Chap. 701, Laws of 1903, supra; 560, 568 ; Tilden v. Green, 130 id. 29, § 93, The Real Prop. Law, supra; 49, 53; Kelly v. Hoey, 35 App. Div. Rothschild v. Goldenberg, 5 App. Div. 273. 293 ; Opinion Gray, J., Matter of 95 j r g 729, § 58, p. 402, supra. Griflfen, 167 N. Y. 71. 9^ Allen v. Stevens, 22 Misc. Rep. 9*Dammert v. Osborn, 140 N. Y. 158; s. c, 33 App. Div. 485, 161 N. 43; Butler V. Trustees, 92 Hun, 96; Y. 123. People V. Powers, 147 N. Y. 104; 97 gj-andow v. Brandow, 66 N. Y. Matter of Sturges, 28 Misc. Rep. no; 401, 406; Cruikshank v. Home for the Murray v. Miller, 85 App. Div. 414; Friendless, 113 id. at p. 351; Read v. affd., 178 N. Y. 316. Williams, 125 id. at p. 568; Kelly v. 9* Laws of 1893, chap, ^oi ; i R. S. Hoey, 35 App. Div. 273. 729, § S5; Downing v. Marshall, 23 Charitable Uses. 453 tion to powers,*^ this statute and its several congeners^ now make the doctrine of cy pres clearly applicable to powers in trust to ap- point to charitable or religious uses.^ When Charitable Uses Must Vest. Notwithstanding charitable uses are now, as formerly, before the Revised Statutes, held to be with- out the meaning and spirit of the rule against perpetuities,^ they must vest in possession within the time prescribed by that rule, or the limitation is invalid.* When a Devise or Bequest is Absolute to a Corporation. The mere fact that a gift to a charitable corporation is limited to one of its corpo- rate purposes, or " in trust " for one of such purposes, does not necessarily create a charitable use or trust.* Act Confined to Devises, etc., on Trusts for Charity. The act of 1 893 and this section appear to have no reference to grants or devises which are not in trust. Therefore a beneficial devise to a charitable corporation eo nomine, for its own purposes and not in trust, is not helped by the act of 1893, or this section.^ Effect of this Section on the Law of Charities. It is to be observed that this section of the Real Property Law changes the language of the " act to regulate gifts for charitable purposes,^ and strengthens the argument, that the statute is designed to restore the old law of charitable uses and to permit uncertainty in respect of the bene- ficiaries of a public or charitable use, and also to tolerate those charitable or public uses which would be void in respect of non- charitable uses, because of an undue suspension of the power of *8Hillen v. Iselin, 144 N. Y. 365, Smith v. Havens Relief Fund So- 374- ciety, 31 N. Y. Law Jour. 1175; 99 § 93, The Real Prop. Law ; chap, and see Fowler, Charitable Uses, 701, Laws of 1893 ; chap. 291, Laws of Trusts and Donations, 83, 115, con- ipi'i- taining a reference to other authori- 1 Kelly V. Hoey, 35 App. Div. 273; ties. This Essay, although now su- § 162, The Real Prop. Law. perseded by recent legislation and 2 § 32, The Real Prop. Law. decisions, gives a history of charities SRose V. Rose, 4 Abb. Ct. App. in New York State. Dec. 108 ; Mitcheson, Char. Com. Acts, B Bowman v. Domestic & F. Mis- 59; Tudor, Char. Trusts, 56; Challis, sion Society, 42 Misc. Rep. 574; Smith 157; cf. Brigham v. Peter Bent- v. Havens Relief Fund Society, 31 Brigham Hospital, 126 Fed. 796. N. Y. Law Jour. 1175; cf. Fowler, * Wetmore v. Parker, 52 N. Y. 410; Charitable Uses, 81, 120. Matter of Daniels, 41 Misc. Rep. 299 ; e chap. 701, Laws of 1893. 454 Charitable Uses. alienationJ But the leading case of Allen v. Stevens is, no doubt, destined in the future to be the subject of much consideration, as in the course of its progress six judges were for the final conclusion and six against it.® This Section Declaratory in Part. The part of the above section ad- dressed to the case of a donor's failure to nominate a trustee of a charitable use was declaratory.® Attorney-General to Represent Indefinite Beneficiaries. Where the bene- ficiaries of the uses mentioned in this section are uncertain or in- definite, " personw incertcz," the Attorney-General shall represent them and enforce the trusts.^** People of the State Defendant. The People of the State are, of course, the real party in interest to an action under this section,^^ but owing to the embarrassment in suing a State, the common practice is to make Mr. Attorney-General the party instead, naming him alone in his official capacity.^^ ■^ Allen V. Stevens, 22 Misc. Rep. p. 382 ; Levy v. Levy, 33 id. at p. 102 ; 158, 33 App. Div. 4B5; revd., 161 N. Y. Holland v. Alcock, 108 id. at p. 330; 123; Matter of Griffin, 167 id. 71, Kirk v. Kirk, 137 id. 510, 514; Phelps 81 ; Spencer v. Hay Library Assn., 36 v. Pond, 23 id. 69, 77 ; Woodward v. Misc. Rep. 393; Smith v. Chese- James, 115 id. 346, 357. brough, 176 N. Y. 317, 319. See "^^ Supra, § 93; chap. 683, Laws of Preface to the writer's essay on Chari- 1892 ; chap. 701, Laws of 1893 ; chap, table Uses, New York, 1896. 821, Laws of 1893 ; cf. Code Civ. 8 See this case reviewed, 2 Col. Law Proc, §§ 1797-1804; People v. Pow- Rev. 16. Many think that this case ers, 83 Hun, 449; s. c, 147 N. Y. went too far in holding that the act 104; Allen v. Stevens, 33 App. Div. of 1893 (chap 701) relieved char- 485; revd., 161 N. Y. 123. itable uses and trusts from the rule n Allen v. Stevens, 23 App. Div. against perpetuities, and that the stat- 485, 509, 510, et cf. § 1594, Code Civ. ute was designed to relieve against Proc. invalidity for indefiniteness only. But l^ § 93, The Real Prop. Law ; Allen the decision is certainly wholesome as v. Stevens, 33 App. Div. 485 ; Roths- it stands. child v. Goldenberg, 58 id. 499. 9 Downing v. Marshall, 23 N. Y. at Trustees' Investments. 455 :§ 94. Trustee's investments in stocks — Whenever an executor, trustee, guardian of an infant, committee of a lunatic or other person or persons acting in a fiduciary capacity, or a life tenant, is entitled to receive the proceeds of the sale of any real property sold or tO' be sold pursuant to the provisions of this article, or pursuant to a judgment in partition, or pursuant to a power of sale contained in a deed or will, and the said property has been or is about to be purchased by a corporation formed or to be formed for such purpose, and all adult beneficiaries and also all adult persons having a vested interest or estate in possession, reversion or remain- der in the proceeds of such sale have agreed, or desire to agree that their share of such proceeds shall be in- vested in the stock and bonds or in either the stock or bonds of such corporation, then the said executor, trus- tee, guardian, committee or other person or persons act- ing in a fiduciary capacity, or the life tenant or tenants, may, with the approval of the supreme court, invest his share of the proceeds of such sale in the stock or bonds of such corporation, provided, however, that such corporation shall be prohibited by its certificate of incorporation from investing in any stocks, bonds or other securities other than real estate which are not under the laws of this state a proper subject for the investment of trust funds. The supreme court shall not grant an order permitting such an investment, unless it appears to the satisfaction of such court that a writ- ten notice stating the time and place of the application for such leave has been served upon every beneficiary and also upon every person in being having a vested interest or estate in possession, reversion or remainder, in such proceeds at least eight days before the making thereof, if such beneficiary or other person is an adult within the state; or if a minor, lunatic, person of unsound mind, habitual drunkard or ab- sentee, until proof of the service on such beneficiary or other person of such notice as the court or a justice thereof pre- scribes. The court shall appoint a special guardian for any minor and for any lunatic, person of unsound mind, or habitual drunkard, who shall not be represented by a com- mittee duly appointed. The application must be by petition duly verified, must be made by the executor, trustee, guardian of an infant, committee of a lunatic, or such other person or persons acting in a fiduciary capacity, or a life tenant, entitled to receive the proceeds of such sale, and shall set 456 Trustees'" Investments. forth the reasons for such investment and the nature thereof and the pecuHar facts which make it proper that the appH- cation shall be granted. After taking proof of the facts either before the court or a referee and hearing the parties and fully examining into the matter, the court must make a final order upon the application. In case the application is granted, the final order must authorize the said executor, trustee, guardian of an infant, committee of a lunatic, or other person or persons acting in a fiduciary capacity, or life tenant, so entitled to receive the proceeds of such sale, to make such investment upon such terms and conditions as the court may th.erein prescribe. Comment. This section was added to this act^* by chapter i66, Laws of 1901, and amended by chapter 742, Laws of 1904. Under section 85 of this act a brief allusion has been made to the invest- ments of trustees and the effect of acquiescence in their breaches of trust. ^* This section was obviously designed to favor the incorpo- ration of large estates, when the heirs, devisees and legatees are willing to take bonds and stock for their respective interests and thus facilitate the administration and division of the estate. End of Article. Section 94 now concludes the sections of Article III of this act. 13 The Real Prop. Law ; chap 547, ^* Supra, p. 427. Laws of 1896. The Real Property Law. 457 ARTICLE IV. Powers. Section iio. Effect of article. 111. Definition of a power. 112. Definitions of grantor, grantee. 113. Division of powers. 114. General power. 115. Special power. 116. Beneficial power. 117. General power in trust. 118. Special power in trust. 119. Capacity to grant a power. 120. How power may be granted. 121. Capacity to take and execute a power. 122. Capacity of married woman to take power. 123. Capacity to take a special and beneficial power. 124. Reservation of a power. 125. Effect of power to revoke. 126. Power to sell in a mortgage. 127. When power is a lien. 128. When power is irrevocable. 129. When estate for life or years is changed into a fee. 130. Certain powers create a fee. 131. When grantee of power has absolute fee. 132. Effect of power to devise in certain cases. 133. When power of disposition absolute. 134. Power subject to condition. 135. Power of life tenant to make leases. 136. Effect of mortgage by grantee. 137. When a trust power is imperative. 138. Distribution when more than one beneficiary. 139. Beneficial power subject to creditors. 140. Execution of power on death of trustee. 141. When power devolves on court. 142. When creditors may compel execution of trust power. 143. Defective execution of trust power. 144. Effect of insolvent assignment. 145. How power must be executed. 146. Execution by survivors. 147. Execution of power to dispose by devise. 148. Execution of power to dispose by grant. 149. When direction by grantor does not render power void. 150. When directions by grantor need not be followed. 151. Nominal conditions may be disregarded. 152. Intent of grantor to be observed. 458 Former " Powers " Abolished. Section iS3- Consent of grantor or third person to execution of power. 154. When all must consent. 155. Omission to recite power. 156. When devise operates as an execution of the power. 157. Disposition not void because too extensive. 158. Computation of term of suspension. 159. Capacity to take under a power. 160. Purchaser under defective execution. 161. Instrument affected by fraud. 162. Sections applicable to trust powers. § 1 10. Effect of article. — Powers, as they existed by law on the thirty first day of December, eighteen hundred and twenty-nine, have been abolished. Hereafter the creation, construction and execution of powers, affecting real prop- erty, shall be subject to the provisions of this article; but this article does not extend to a simple power of attorney, to convey real property in the name, and for the benefit of the owner. Formerly i Revised Statutes, 732, section 73, and I Revised Statutes, 738, section 1.^4 : § 73. Powers, as they now exist by law, are abolished; and from the time this Chapter shall be in force, the creation, construction and execution of powers, shall be governed by the provisions of this Article.^ § 134. The provisions of this Article shall not extend to a simple power •of attorney, to convey lands in the name, and for the benefit, of the owner.* Comment on Section no. This section, in its original form, abolished the common-lawf rules concerning powers over estates in lands.^ It is obvious that not all powers are so abolished, but those only which were connected with property or estates; in other words, technical " powers " or the powers of the lawyers, not the " powers " of the laymen, are affected by this legislation. Before taking up our consideration in detail of this article* in both its original and amended forms, let us briefly consider what was meant by " powers " and the place which they occupied in the common law of estates in lands. " Powers " before 27 Henry VIII. Prior to the Statute of Uses (27 Hen. Vni, chap. 10) " powers " were known only in equity. 1 Repealed, chap. 547, Laws of 1896. abolishes the common law touching 2 Repealed, chap. 547, Laws of 1896. " Powers." Why then is it stated in 3 As the Revised Statutes are re- a preterite tense? pealed, it is now this section which * The Article on Powers. Powers. 459 The feudal law of land which then prevailed in the law courts took no notice of them.^ But in equity, where land was conveyed to feoffees for uses, the donor or feoffor might reserve a power to himself to declare or appoint the future uses, or he might even grant this power to a stranger, and these powers equity would enforce, for such powers were in the nature of trusts.^ The com- mon law of land was thus again evaded by a refinement J "Powers" after the Statute of Uses. When the Statute of Uses finally fastened the legal estate to the equitable use, with all its varied incidents, the equitable doctrines of powers passed into the common law of estates in lands. ^ These equitable doctrines were much amplified in course of time, by judicial exposition and deci- sions, and finally " powers " became the most abstruse branch of legal learning.^ Even Sugden's masterly treatise, published in the last century, failed to make the learning on powers easy of acquisi- tion. The difficulty lay in the application of particular doctrines to complex settlements; for nearly every settlement in England, between 1691 and 1800, contained a power of revocation or a power of appointment.^" Sir Edward Coke states that powers of revoca- tion were common in his time.^^ Powers of Revocation. Powers of revocation, which were in use in voluntary settlements prior to the Statute of Uses,^^ were recog- nized at law subsequently to the Statute of Uses.^* But after the Statute of 27 Elizabeth, chapter 4, made powers of revocation fraudulent, as to purchasers, they fell into disuse in voluntary settle- ^ Powell, Pow. I ; cf. Chance, Pow. of the general European renaissance, 3; Gilb. Uses, 140; Lewin, Trusts (ist caused a very similar awakening in ed.), 431, note. the legal profession, and, after the 6 See Sugden, Introduct. to Gilb. reign of Elizabeth, a very much more Uses, 43; Powell, Pow. (ed.of 1799) 3. involved system of conveyancing, in- '' See observations on the mode in eluding powers. Supra, pp. 2, 35. which the common law was subverted 10 See Mr. Booth's opinion on the by uses, pp. 26-34. Doctrine of Executory Fees, i Harg. 8 Sugden, Introduct. to Gilb. Uses, Collect. Jurid. 421, 423. 43 ; Chance, Pow. 6 ; Whart. Conv. " Co. Litt. 237a. 422. 12 Cruise Dig tjt. n^ chap. 2, § 34; 9 See note of Revisers, with article cf. Crabbe, Real Prop., § 2065, citing on Powers, i R. S. 731; Jennings v. Sugden. Conboy, 73 N. Y. 230, 233. The re- 13 Co. Litt. 237a. vival of learning in England, a part 460 Powers. ments.^* Powers of appointment, or those powers which limited future uses, continued to prevail in practice. In settlements founded on a good or valuable consideration, or not fraudulent under the statutes, powers of revocation were and still are in use.^* For example, a power of revocation and appointment to new uses to take effect on a second marriage may still be inserted in a marriage settlement. Powers of revocation are in a sense the antitheses of power of appointment.-'® Introduction of "Powers" in New York. When the English law of estates and the socage tenure were introduced in New York in the year 1664, powers were probably much less used in settlements of estates in England than they were a half-century later.^'^ As the Statute of Uses was in force in New York, the contemporaneous English law of powers was distinctly relevant to all estates held by the socage tenure, and consequently there was nothing to pre- vent the application of the law of powers to settlements of estates in New York-^^ But in a new country the refinements of convey- ancing are rarely resorted to, as the tendency of all colonies and new plantations is to resort to primitive social conditions and, consequently, to the more primitive stages of the national law. Thus, we find it generally admitted by the early law writers of this country that the EngHsh law concerning powers was less fre- quently applied in America, in practice, than any other doctrine of the English common law.-*® That this remained true of New York, even in 1829, there can be no doubt, for the fact was so publicly stated by the original revisers of the present statute in their note to the Article on Powers.^" Yet, as powers were a part of the com- mon law of estates prior to the Revised Statutes, such common law of Powers was, in legal theory, made a part of the common law 1*1 Sand. Uses, 171, 172; § 231, i^ PrJor to the War of Independ- The Real Prop. Law. ence, and for some time after, all es- 15 Belmont v. O'Brien, 12 N. Y. 394, tales were of this tenure in New 404; Matter of Masury, 28 App. Div. York. Vide supra, p. 52, and Cutting 580, 582 ; affd., 159 N. Y. 532 ; Matter v. Cutting, 86 N. Y. at p. 529. of Bostwick, 160 id. 489, 492 ; Schreyer i* 4 Greenl. Cruise, 181, note ; 4 V. Schireyer, 43 Misc. Rep. 520; § 231, Kent, Comm. 315. The Real Prop. Law ; cf. Gibbs v. 20 See that note infra, Appendix II. N. Y. Life Ins., etc., Co., r4 Abb. Even in 1855 Mr. Lalor refers tci tlie N. C. I. little practical importance of the law 18 Strahan, Prop. 174. of powers. Lalor, Real Prop. 206. 1^ Supra, p. 36. Powers. 461 ,• of the State of New York by the provisions of the successive State Constitutions.^^ The Article on Powers in the Revised Statutes was substituted in the place of the relevant portions of the com- mon law concerning Powers. Powers before the Revised Statutes. Let us next consider, briefly, the nature of the powers thus swept away by the Revised Statutes. At the common law, " powers " were commonly divided into (i) common-law powers, (2) equitable powers, (3) powers operating under the Statute of Uses.^^ Common-law powers were authorities given to one person by another to do an act for the donor. Pow- ers of attorney^ and powers conferred by acts of the Legisla- ture^* were common-law powers. Equitable powers referred wholly to powers over equitable interests.^ Powers Operating under the Statute of Uses. Powers operating under the Statute of Uses were either powers to declare future uses or to revoke existing uses.^^ When such future uses were duly declared, or duly revoked, the uses themselves were executed in possession by force of the Statute of Uses.^''' The last class of powers then are those intended to be swept away or abolished by the Revised Statutes, although Chancellor Kent states that the Revised Stat- utes abolished even common-law powers.^* But it will be observed that powers of attorney were and are expressly excepted from the operation of the Article on Powers,^^ while powers conferred by an act of the Legislature have never been subjected in practice to the Revised Statutes.^" So that it may, perhaps, be not quite accurate 21 Const, of 1777, § 35 ; Const, of Pow. i ; Crabb, Law Real Prop., 1821-1823, art. VII; Cutting v. Cut- § 1959. ting, 86 N. Y. 522, 529. 25 Farw. Pow. 2, such as were en- 22 This is the classification of the forced in equity but not executed by editors of Coke on Littleton, than the Statute of Uses; Strahan, Prop, whom there is no higher authority. 166. See index to their Notes on Powers. 26 j Sugd. Pow. 2 ; cf. i Chance, 23 It is the execution of powers of Pow. 3; Strahan, Prop. 167, 174. attorney, not their creation, which 27 Wadhams v. Amer. Home Miss, effects the transmutation of estates. Society, 12 N. Y. 415, 421. Hence, they are mere common-law 28 4 Kent, Coram. 318, note, authorities, not "powers," in a tech- ^ Supra, § no, The Real Prop. nical sense. Law; i R. S. 734, § 134. 24 Cf. I Chance, Pow. 2 ; Whart. ^^ E. g., People ex rel. Schanck v. Conv. 419 ; Farw. Pow. i, 2 ; i Sugd. Green, 64 N. Y. 499 ; Powell v. Tuttle, 3 id. 396. 462 Powers. » to assume that common-law powers were disturbed by either the Revised Statutes, or this article of the present law- Powers of Appointment and Revocation. Powers deriving their effect from the Statute of Uses were powers of appointment or powers of revocation-^''- But as a power of appointment was thought strictly to be a power of revocation as it both displaced existing estates and substituted new ones, powers operating under the Statute of Uses are sometimes termed powers of appointment and revocation.^^ A conveyance to " A." and his heirs to such uses as " B." may appoint and in default of any appointment to the use of " C." and his heirs, gave the latter a vested estate subject to be divested by the exercise of the power .^* Such is an example of the power in question. Classification. Powers were classified as (i) Appendant or appurtenant. (2) Collateral or in gross. (3) Simply collateral, which are again either: (a) General, (b) Special. Powers appendant were authorities to limit an estate out of the estate of the donee of the power. Powers collateral, or in gross, were authorities given to those who had an interest in the estate at the time of the execu- tion of the deed, but they enable them to create such estates only as will not attach on their own interest, such as a power to tenant for life to appoint the estate after his death.^* Powers of the third kind were given to those not having any estate in the lands at any time; such as power to a stranger to revoke a settlement and appoint new uses: (a) generally or to any one he Hkes; (b) specially or to appointees particularly named.^^ Classes of Powers Might Overlap. These classes of powers might overlap, for a power might belong to several classes at the same time. Thus, when the donee had an estate for life, with power to jointure after his death, and also a contingent remainder in fee, the power to jointure was collateral as to the life estate and append- ant as to the estate in fee. No two svstems of classification of 31 Cf. Read v. Williams, 125 N. Y. of appointment, i Sugd. Pow. 441 ; I at p. 569, as to present classes Of Chance, Pow. 109. powers under Revised Statutes. ^3 Cf. § 31, The Real Prop. Law. 32 Cruise, Dig. tit. 32, chap. 13, § 3; 34\Yilson v. Troup, 2 Cow. 195. 4 Kent, Comm. 315. But a power of 36Whart. Conv. 425, 426; i Sugd. revocation is distinct from a power Pow. 474. Powers. 46S powers have agreed in all respects.*® But systems of classification are important only in respect of the donee's ability to suspend, extinguish, or merge the power.*'' The classification given above was the more common, and even Mr. Chance, who criticised it, was forced to resort to it as an appropriate plan for the chapters of his admirable treatise on Powers. This generally-received classification has also the advantage of being ancient.** Former Learning on Powers. The former learning on powers em- braced such subjects as the "creation of powers;" their "delega- tion" and "forfeiture;" their "execution;" "estates, lawfully created tinder powers;" "the suspension," "extinguishment," " barring " and " merger of powers," and, possibly, equitable relief in cases of defective execution of powers, although strictly the last subject comes under the learning on equitable jurisdiction. It will be seen that the Revised Statutes and the present article on Powers attempt to embrace most of these topics. The changes thus instituted in particular doctrines of the common law of powers may be referred to the appropriate sections of The Real Property Law-** Powers before the Revised Statutes. Prior to the Revised Statutes the technical term " power " referred only to powers connected with estates in lands. It was in this sense that the Revised Statutes and also this act are primarily concerned with it. Powers connected with personal property were not in terms affected by the Revi- sions.*" But as there is a tendency to make uniform the laws con- cerning real and personal property the courts of this State apply this article as far as possible to powers connected with interests in personal property.*^ Changes Instituted by the Revised Statutes. This very brief retro- spect has prepared us for an examination, in more detail, of the changes wrought by the New York statutes dealing with powers. Unquestionably both equitable powers and powers deriving their *fiWhart. Conv. 424; i Chance, ** See Gilb. Uses, 141. Pow. 9 ; Farw. Pow. 8 ; 4 Kent, Comm. 39 Infra. 317; I Sugd. Pow. 43. 40 I R, s. 7.32, § 74; § III, The Real *' Powell, Pow. 6, 12 ; I Sugd. Pow. Prop. Law. 43 ; I Chance, Pow. 9 ; 4 Kent, Comm. 4i Matter of Wilkin, 90 App. 317- Div. 324, 327. For other cases see Fowler, Pers. Prop. Law, 40, 41. 464 Powers. effect from the Statute of Uses are abolished by such legislation, which governs not only the creation but also the construction and execution of powers.*^ This article of the statute has become the Alpha and the Omega of the existing law of powers over estates in lands. The common-law learning is stated to have since become either untrustworthy or else simply illustrative, rather than cogent.*^ Not all the old learning on powers was, however, com- pletely swept away by the Revised Statutes, for we find the courts since resorting to the common law to resolve questions not satis- factorily provided for by the statute, such as the execution of powers under certain circumstances,** their lawful delegation,*® and the quantity of estates well created under powers.*^ It must be confessed, though, that the old learning is always subordinated to the statute which is controlling. At common law powers of sales to executors who had no legal title were " common-law powers," and not powers operative under the old Statute of Uses.*''^ But since the Revised Statutes, powers of sale to executors are re- garded as powers controlled by this Article on Powers and not as common-law powers. The common-law rules relating to common- law powers are still applicable to common-law powers and to powers of attorney, by express reservation of the statute.** It is never well to infer that the completed edifice of the common law can reflect no light on the present learning of powers deriving their effect from this statute, for such an inference will not be accurate in all cases.*® The fact that the object of a power at common law remains the object of a power under our present system, must *2 Jackson V. Edwards, 7 Paige, 382, Carey, 11 id. 397, 402; Belmont v. 399; Coster V. Lorillard, 14 Wend. O'Brien, 12 id. 394, 404; Sweeney v. 26s, 314; Jennings v. Conboy, 73 N. Warren, 127 id. 426, 433; White v. Y. 230, 233 ; Cutting v. Cutting, 86 id. Hicks, 33 id. 383. 522, 530; Delaney v. McCormack, 88 *5 Mayor v. Stuyvesant, 17 N. Y. id. 174, 180; Hutton v. Benkard, 92 4, 40. id. 29s, 304; Austin v. Oakes, 117 id. *6 Root v. Stuyvesant, 18 Wend. 577. 59° ; Sweeney v. Warren, 127 id. 257, 272 ; Darling v. Rogers, 22 id. 483, 426, 432; § no, The Real Prop. Law, 495, 496. formerly i R. S. 732, § 73, supra. *'' Strahan, Prop. 166 ; Dean v. Dean *s Cases supra, and particularly, Jen- (1891), 3 Ch. 150. nings V. Conboy, 73 N. Y. 230, 233. *^ Supra, § no. ** Mutual Life Ins. Co. v. Shipman, ** Dominick v. Sayre, 3 Sandf. S55- 119 N. Y. 324, 328, 329; Barber y. Powers. 463 perpetuate the relevancy of the old law. But this Statute, or Code, of Powers, has made a new learning, simpler to comprehend and apply than the old. The main reform of this article relates to beneficial powers, which were intended to be abrogated in great part.^ Comment on Section no and its Original Section. We have seen that the Statute of Uses (27 Hen. VIII, chap. 10) survives, in a per- fected form, in the present statute.^^ Is it, then, wholly accurate to say that powers deriving their effect from the Statute of Uses have been eradicated, when all technical powers now derive both their existence and their effect from the present statute, which includes the Statute of Uses? The fact is, that the effect of the New York legislation has not been altogether to abolish the com- mon law of powers, but rather to modify and fix certain phases and essentials of that system in a more concrete and inelastic form. It is more doubtful than is generally supposed whether the statutory changes are not often verbal.^^ Certainly had it not been for the common law of powers, the Revised Statutes would have assumed a totally different form, and Powers have been relegated to that department of a Code which treats of agency; for, all powers are, to some extent, mere agencies, or delegations, emanating from some one possessing an adequate dominion over an estate. There- fore, it was proper to insert the proviso in the foregoing section, to the effect that a power must always be an authority to do what the grantor might himself lawfully do.^^ Effect of Section no. While this section of The Real Property Law declares '' powers " abolished, it does not declare that the com- mon law, concerning powers, is abolished; so that whenever the common law remains relevant to the powers deriving their force or effect from this article, that common law is still made applicable by constitutional reservation. Consequently, as this article legis- lates nothing of consequence upon the rules touching the extin- guishment, the suspension or the merger of powers, those branches ^^ Vide infra, § ii6, The Real Prop. ^^ Cf. opinion Bronson, J., Root v. Law, and Revisers' note to article of Stuyvesant, i8 Wend, at pp. 283, 284; Revised Statutes on Powers, Ap- Dominick v. Sayre, 3 Sandf. 555. pendix II. 53 And see § 119, The Real Prop. ^^ Supra, pp. 197, 198, 350, 351. Law. 30 466 Powers. of the law of powers must be still governed by the fundamental law of the Sta1;e. How Powers Extinguished. At common law powers may be de- termined or extinguished in various ways: By their complete execution; by the death of the donee or grantee of the power in certain cases; by the failure of their objects; by merger and by a release.^* Since the Revised Statutes the law on this head is not changed. Powers of Sale. We have stated above that since the Revised Statutes executors' powers of sale are regarded as trusts of powers, and no longer as common-law powers. This subject is more fully considered under section yy of this act.^^ Powers of Appointment. The execution of a power of appointment is nothing but the limitation of a use. The estate passes to the appointee under the original will or settlement creating the power, and not under the power. Thus, when an estate is given by will to trustees to hold during the life of A., to collect and pay over in- come, etc., to her, with power to A. to appoint the same by last will and testament to and among her issue in such shares as she sees fit, and on default of such appointment, remainder to such issue, even if A. execute the power, her issue take under the origi- nal will, and not under A.'s will.^® 5* Strahan, Prop. 173; § 231, The 170; Maitland v. Baldwin, 70 Hun, Real Prop. Law. 270; Kemp v. Kemp, 36 Misc. Rep. ^5 Supra, pp. 388, 392, 403. 79, 87 ; Matter of Zefita, Countess de 66 Genet v. Hunt, 113 N. Y. 158, Rohan-Chabot, 167 N. Y. 280. Definition of " Power." 467 § III. Definition of a power — A power is an authority to do an act in relation to real property, or to the creation or revocation of an estate therein, or a charge thereon, which the owner, granting or reserving the power, might him- self lawfully perform. Formerly i Revised Statutes, 732, section 74: § 74. A power is an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner grant- ing or reserving such power, might himself lawfully perform.^'^ Definition of a " Power." Common-law jurisprudents differ in their definition of a power.^* But it is apprehended that such differences are neither wide nor essential. They all agree that a power is a liberty or an authority reserved by or limited to a person, enabling him to dispose of real or personal property for his own benefit or the benefit of another, and operating upon an estate or interest vested either in himself or in some other person; the liberty or authority, however, not being derived out of such derivative estate or interest, but over-reaching it or superseding it, either wholly or partially.^® The word " power " is generally used as a technical term. It is a delegated authority cut out of a fee, which embraces all powers.^" It may be said to denote an inseparable attribute of complete dominion over property, according to the rules of the common law. Crabb, adopting a definition of Wilmot,®^ states that powers differ from trusts in that powers are never imperative; they leave the act to be done at the will of the party to whom they were given.*^ At law powers were never imperative, but in equity when the power was for the benefit of another besides the donee of the power, it was regarded as a trust of a power,^* or as we now say " a power in trust." ** Thus in the old law there were mere powers which were not trusts,^ and powers in the nature of trusts and the latter 57 Repealed, chap. 547, Laws of ^^ Wilmot's Opin. 23. 1896. 62 Crabb, Real Prop., § 1059. 58 Will. Real Est. & Conv. 249. 83 Story, Eq. Juris., § 1061. 8» I Chance, Pow. i; Whart. Conv. ^Vide infra, §§ 118, 137. 419 ; I Sugd. Pow. I ; Crabb, Real ^ Sugd. Pow. 158 ; Farw. Pow. 463 ; Prop., § 1959. Towler v. Towler, 142 N. Y. 371, 80 Hetzel v. Barber, 69 N. Y. i, 7 ; 376 ; Cutting v. Cutting, 20 Hun, 360, Jennings v. Conboy, 73 id. 230; Fay 369. V. Taylor, 31 Misc. Rep. 32. 468 Definition of " Power." powers were imperative.®* This division was not, however, ex- haustive, as there were powers compounded of both classes, as where there was a trust to be effected by a power.®'' Definition of the Statute. The above definition, by the Revised Statutes,®^ of a technical " power " does not differ materially from that known to the common law. Yet it is wide enough to define an express trust which includes a power and more.®^ A power under this act must always be such as the donor, or grantor, might himself lawfully perform.™ It is also indispensable to its creation that the object or objects to be accomplished by a power shall be specified in the instrument of its creation." The essential similar- ity between powers since the Revised Statutes and powers before the Revised Statutes is then apparent. Both are either powers of appointment or powers of revocation. Both are either " restrain- ing powers," i. e., powers reserved to owners; or " enabling powers," i. e., powers enabling persons not enjoying a right of dominion to exercise a dominion sub modo. What Acts now Valid as "Powers." What acts may be valid as powers, the Article on Powers does not attempt to specify,^^ but certain former beneficial powers are now void.^^ What Words Necessary to Create Powers. No set form of words is necessary to create or reserve a power,''* and such was the rule at common law.^^ Powers cannot Suspend Alienation Unlawfully. Powers are subject to the rule against perpetuities, ''* and for the purpose of computing 68 Farw. Pow. 463 ; Brown v. Higgs, p. 569 ; Hillen v. Iselin, 144 id. at 8 Ves. s6i ; Harding v. Glyn, i Atk. p. 380. 469; 2 Sugd. Pow. 158. '3§ 116, The Real Prop. Law. 67 2 Sugd. Pow. 158. 7*Dorland v. Dorland, 2 Barb. 63, 68 See this section iii, supra; i 80; Hubbard v. Gilbert, 25 Hun, 596; R, S. 732, § 74, supra. Goetz v. Ballou, 64 id. 490; Towler 69 Selden v. Vermilya, 3 N. Y. 525, v. Towler, 142 N. Y. 371, 374 ; Cahill 536; Murray v. Miller, 178 id. 316. v. Russell, 140 id. 402; Meehan v. ''^ Woerz V. Rademacher, 120 N. Y. Brennen, 16 App. Div. 396 ; Salisbury 62, 68; Hillen v. Iselin, 144 id. at v. Slade, 160 N. Y. 278, 289; cf. Jen- p. 380; Root V. Stuyvesant, 18 'Wend, nings v. Conboy, 73 id. at p. 234, as at p. 265 ; Murray v. Miller, 178 N. Y. to powers created by deed, and see 316. pp. 370, 404, as to powers in trust. ■^1 Sweeney v. Warren, 127 N. Y. ''^ i Chance, Pow. 31; i Sugd. Pow. 426. 117; Farw. Pow. 48; Strahan, Prop. ''^ Downing v. Marshall, 23 N. Y. at 171. p. 380; Belmont v. O'Brien, 12 id. at ''^ Vide infra, under § 117 of this p. 403; Read v. Williams, 125 id. at act. Powers. 469 the time in which alienation may be lawfully suspended by a power, the power relates back to the time when the instrument creating it took legal inception/^ What " Powers " can be Delegated. As all powers are cut out of that aggregation or bundle of rights, known in the English common law as a " fee," both the doctrines of relation (whereby an estate created under a power relates back, in point of time, to the instru- * ment creating the power) '^® and of agency apply to " Powers." ^^ Thus the power must be strictly pursued and not deviated from.^" It is a principle of the law of agency, " delegata potestas non po- test delegare," or, as otherwise expressed, " vicarms non habet vica- rium.^^ This principle applies to the execution of those " powers " which repose a personal trust or confidence in the donee of the power.*^ But this doctrine does not apply to those powers which, in their nature, are neither personal nor a trust or confidence, for the execution of such may be delegated. ^^ A grantee of a power may employ attorneys to do ministerial acts, and this is not the delegation of a power.** Title of Appointee. It is true that the title of an appointee may vest in interest at the time of the execution of the power of appoint- ment, but it relates back and is acquired under the instrument creating the power.^ Cy Pres Doctrine. The doctrine of cy pres does not apply to powers in this State*^ unless the power is now one to appoint to charitable or religious uses, when a more liberal rule is made applicable by statute.'*''' ''''Genet v. Hunt, 113 N. Y. 158; 83 d-goke v. County of Kings, 97 N. Townshend v. Frommer, 125 id. 460, Y. 421, 453 ; Frear v. Pugsley, 9 Misc. 461 ; Salmon v. Stuyvesant, 16 Wend. Rep. 316 ; Mayor of N. Y. v. Stuyve- 324; I R. S. 737, § 128, now § 158, sant, 17 N. Y. 34, 42. The Real Prop. Law, q. v. 84 Gates v. Dudgeon, 173 N. Y. 426. re § 158, The Real Prop. Law. ^ § 158, The Real Prop. Law ; Mat- ■^9 Hillen v. Iselin, 144 N. Y. at ter of Stewart, 131 N. Y. 274, 281 ; p. 374. Matter of Harbeck, 161 id. 211, revg. 80 Pawling Savings Bank v. Wash- 43 App. Div. 188. burn, so App. Div. 526. 86 Hillen v. Iselin, 144 N. Y. 365, 81 Broom, Leg. Max. (ed. 1848, 374, et vide supra, under § 79, The Lond.) 665. Real Prop. Law. 82 I Sugd. Pow. 213 ; Newton v. 87 yide supra, under § 93, The Real Bronson, 13 N. Y. 587, 593 ; Coleman Prop. Law. V. Beach, 97 id. 545, 559; Campbell v. Jennings, 22 Misc. Rep. 406. 470 Definitions of " Grantor," " Grantee." § 112. Definitions of grantor, grantee. — The word "grantor" is used in this article, in connection with a power, as desig- nating the person by whom the power is created, whether by grant or by devise; and the word " grantee " is so used as designating the person in whom the power is vested, whether by grant, devise or reservation. Formerly i Revised Statutes, 738, section 13s : § 135. The term " grantor of a power " is used in this Article as designat- ing the person by whom a power is created, whether by grant or devise; and the term " grantee of a power,'' is used as designating the person in whom a power is vested, whether by grant, devise or reservation.88 Comment on Section 112, Supra. At common law a grantor of a power was called a " donor," and the grantee, a " donee " of a power.** The change in the statute being purely verbal is incon- sequential. Where a settlor reserves to himself a power of revoca- tion, he is both a " grantor " and a " grantee " of a power under this section. But the case is provided for elsewhere in the statute, and the person thus reserving to himself is made subject to all those provisions of the article applicable to grantees of powers.^ Usage of Term "Donee." The effect of changing the usage of es- tablished terms of the common law is not always conducive to pre- cision. Thus the courts continually speak of a " donee of a power " instead of the grantee of a power, and they are entirely within the bounds of propriety when so speaking. But we should expect the Legislature to be consistent at all times, yet even they speak of a grantee of a power as a " donee of a power " in the recent Tax Law.®' 88 Repealed, chap. 547, Laws of 1896. s** i R. S. 735, § 105 ; § 124 The Real 88 Cf. Sugd. Pow. and Chance, Pow. Prop. Law. passim. *i § 220, chap. 24, General Laws, amended chap. 284, Laws of 1897. Division of " Powers." 471 § 113. Division of powers. — A power, as authorized in this article, is either general or special, and either beneficial or in trust. Formerly i Revised Statutes, 732, section 76: § 76. Powers, as authorized in this Article, are general or special, and beneficial or in trust.*^ Comment on Section 113. Under section iio it was stated that powers, simply collateral, were formerly subdivided into general and special, according as the appointees were unlimited or limited to particular persons, by the grantor of the power.*^ This division is so extremely natural that it was often employed by text writers,®* and was suggested as a proper classification for a reformed code of powers, long prior to the Revised Statutes.®^ A division of powers into " beneficial powers " and " powers in trust " had not been employed by text writers on powers, but it was a well-known division of gifts and voluntary settlements, and was equally appli- cable to powers.** The statutory definitions of these various kinds of powers follow in the succeeding sections of " The Real Property Law." 9^ Common-law Classification. In the former or old law, powers were divided into general and special powers, according as the authority of the donee of the power was to appoint to any one, including him- self, or to appoint to a special person or class.®^ 92 Repealed, chap. 547, Laws of 1896. s* Cf. Humph. Observ. Real Prop. 93 Supra p. 462. (2d ed. 1827) p. 315 ; 2 Sugd. Pow. 27. 9* Powell, Pow. passim; 4 Kent, 97 Chap. 547, Laws of 1896. Comm. 318; Crabb, Real Prop., §1960; 98 /„ ^^ Byron's Settlement, Wil- Strahan, Prop. 168. liams v. Mitchell (1891), 3 Ch. 474; 95 Humph. Observ. Real Prop. (2d Strahan, Prop. 168. ed. 1827) pp. 88-91. And see Sweeney V. Warren, 127 N. Y. 426, 433. 472 General Power. § 114. General power. — A power is general, where it author- izes the transfer or encumbrance of a fee, by either a con- veyance or a will of or a charge on the property embraced in the power, to any grantee whatever. Formerly i Revised Statutes, 732, section Tj: § yT. A power is general, where it authorizes the alienation in fee, by- means of a conveyance, will or charge of the lands embraced in the power, to any alienee whatever.99 General Powers. As stated before, a general power was much the same at the common law,^ except that the former definition had reference to the appointees, not to the subject-matter upon which the power acted. In construing powers the end and design of the parties is to govern, and where the intention requires it, a special power has been construed as general, and a general power deemed to be special.^ But a power created by deed must be more formal than one created by will.' Execution of General Powers. A general power of appointment is well executed by appointing to trustees on valid trusts.* But as certain trusts, in New York, suspend the power of alienation,^ and the estate created under the power has relation back to the instru- ment creating the power, care must be taken not to violate the rule against perpetuities, in an appointment to trustees.^ Execution of General Beneficial " Powers." A general beneficial power is well executed by an appointment of the grantee of the power to himself.^ 99 Repealed, chap. 547, Laws of 1896. * Jennings v. Conboy, jz N. Y. at 1 Supra, p. 462 ; Farw. Pow. 7 ; p. 234. Whart. Conv. 427 ; Crabb, Real Prop., * Maitland v. Baldwin, 70 Hun, 267 ; § i960; Humph. Observ. Real Prop. Frear v. Pugsley, 9 Misc. Rep. 316; 88-91 ; Kinnier v. Rogers, 42 N. Y. cf. Kemp v. Kemp, 36 id. 79. S3i> 534; Crooke v. County of Kings, ^ Supra, pp. 247, 380. 97 id. 421, 448 ; Coleman v. Beach, * § 32, The Real Prop. Law ; Frear id. S4S, 558; Sweeney v. Warren, 127 v. Pugsley, 9 Misc. Rep. 316, to the id. at p. 433 ; Hume v. Randall, 141 id. contrary, is not an authority on that 499. 503 ! Ward v. Stanard, 82 App. point ; Chapl. Ex. Trusts & Pow., Div. 386, 392; Weinstein v. Weber, § 679; Maitland v. Baldwin, 70 Hun, 178 N. Y. 94. at pp. 271, 272; § 158, The Real Prop. 2 Note to Van Vechten v. Van Law, and cases there cited. Veghten, 8 Paige, at p. 124; Landon ''Hubbard v. Gilbert, 25 Hun, 596. V. Walmuth, 76 Hun, 271. Special Power. 473 § 115. Special power — A power is special where either: 1. Tlie persons or class of persons to whom the disposi- tion of the property under the power is to be made are designated; or, 2. The power authorizes the transfer or encumbrance, by a conveyance, will or charge, of any estate less than a fee. Formerly i Revised Statutes, 732, section 78: § 78. A power is special, 1. Where the persons or class of persons, to whom the disposition of the lands under the power is to be made, are designated : 2. Where the power authorizes the alienation, by means of a conveyance, will or charge, of a particular estate or interest less than a fee.* Special Power. This definition of the statute is more enlarged than the definition of the common law. At common law the term applied only where appointees were special,^ and had no reference to the quantity of the estate to which the power referred. The present section makes an authority to alienate an estate less than a fee a special power^" although appointees may be general. But in the construction of these powers the courts will take into con- sideration their end as designed by the donor of the power. ^^ A power created by deed must be more formal than one created by will.^^ Classifications of powers are only important in reference to the rules regulating the donee's power to extinguish or merge them.^* A special power in trust was under consideration in a recent case.^* * Repealed, chap. 547, Laws of 1896. '^'^ Supra, under § 114, The Real 8 Co. Litt. 271b, note 1, § 7; Crabb, Prop. Law, p. 472. Real Prop., § i960; Whart. Conv. 426; l^jgnnings v. Conboy, 73 N. Y. at Farw. Pow. 7; Wright v. Tallmadge, p. 234. 12 N. Y. 307; Strahan, Prop. 168. ^^ Supra, under § no. The Real 10 Leggett V. Perkins, 2 N. Y. 297, Prop. Law, p. 463. 317 ; Cutting v. Cutting, 86 id. 522, i* Kemp v. Kemp, 36 Misc. Rep. 79. 531 ; Delaney v. McCormack, 88 id. 174, 181. 474 Beneficial Power. § ii6. Beneficial power — A general or special power is bene- ficial, where no person, other than the grantee, has, by the term of its creation, any interest in its execution. A bene- ficial power, general or special, other than one of those specified and defined in this article, is void. Formerly i Revised Statutes, 732, section 79, and I Revised Statutes, 733, section 92: § 79. A general or special power is beneficial, when no person other than the grantee has, by the terms of its creation, any interest in its execution.15 § 92. No beneficial power, general or special, hereafter to be created, other than such as are already enumerated and defined in this Article, shall be valid.i^ Beneficial " Powers." The common-law writers did not classify powers with reference to appointees, otherwise than as already indi- cated into general and special or particular." But, as also stated above, the subdivisions " beneficial " and "in trust," were both logi- cal and convenient.^* All powers connected with estates must now be either bcndicial or in trust}^ A power is beneficial when no one else besides the grantee of the power takes any interest, which the law recognizes, in its execution.^* Thus, when a power is conferred on one who is not a trustee of the power it is beneficial,^^ and so when the limitation is legally silent as to the persons to be benefited by its execution,^ unless the limitation is otherwise void as a trust.23 What Beneficial Powers Are now Authorized. The most drastic reform of the Revised Statutes, and consequently of this Article, related to beneficial powers.^ No beneficial power is now valid unless it 15 Repealed, chap. S47, Laws of 1896. Sweeney v. Warren, 127 id. 426, 434 ; 18 Repealed, chap. 547, Laws of 1896. Hume v. Randall, 141 id. 499, 503 ; 1'' Supra, p. 471 ; cf. Farw. Pow. Deegan v. Wade, 144 id. 573, 578 ; Kin- 186; 2 Sugd. Pow. 27. nier v. Rogers, 42 id. 531, 534; Wein- ^^ Supra, p. 471. stein v. Weber, 58 App. Div. ii2. 19 Jennings v. Conboy, 73 N. Y. 230; 21 Smith v. Floyd, 140 N. Y. 337; Cutting V. Cutting, 86 id. 522, 532, Sweeney v. Warren, 127 id. at p. 434 ; 536; Sweeney v. Warren, 127 id. 426, cf. Towler v. Towler, 142 id. 371. 434; cf. Towler v. Towler, 142 id. 22 Jennings v. Conboy, 73 N. Y. 230. 371- ^ Tilden v. Green, 130 N. Y. 29. 20 Jackson v. Edwards, 7 Paige, 386, 24 y^^g infra, note of revisers of 400; Barber v. Carey, 11 N. Y. 397, Revised Statutes on the article on 402; Wright V. Tallmadge, 15 id. 307; Powers, Appendix II. Cutting V. Cutting, 86 id. 522, 531 ; Beneficial Power. 475 is one specified in this article. Thus, a leasing power to life tenants to make leases for more than twenty-one years was formerly al- together bad, if a beneficial power.^^ It will be readily observed that the condemnation of this section does not, however, extend to powers in trust. Nor would it seem to extend to leasing powers of trustees of an express trust.^® Even if trustees of an express trust take an estate pur autre vie, they are not subject to section 123 of this act.^^ Among the beneficial powers, recognized by this article, are comprised a power to a married woman to dispose, during her marriage, of lands conveyed to her;^^ a power to a tenant for life to devise generally,^ and a power to tenants for life to make leases for twenty-one years.^" What others are valid beneficial powers^^ it is not always easy to determine; but a general power of appoint- ment, granted by a will or settlement, to a beneficiary of a trust, remains a valid general beneficial power,^^ for a beneficiary of a trust is not a life tenant.^^ In determining what beneficial powers were valid under the Revised Statutes,^* the court has placed a liberal construction on the word " enumerated " in the particular sentence declaring beneficial powers not enumerated void.^^ The language of the present section is open, at least, to as liberal a con- struction as its prototype, for no change was thereby intended.^^ Powers of revocation, reserved to settlers for their own benefit, are beneficial powers, and seem still valid under this statute.^'^ 25 Root V. Stuyvesant, 18 Wend. ^i See section 116 of this act, and 257 ; Salmon v. Stuyvesant, 16 id. 321, note that an " advancement " to a 325. This is changed now so as to child is a beneficial power under avoid excess only. § 123, The Real § 295 of this act. Prop. Law ; cf. § 86, supra. ^ Cutting v. Cutting, 86 N. Y. 522 ; 28 See under § 86, supra, and under and see Genet v. Hunt, 113 id. 158, as § 76, concerning quantity of the es- to a power of appointment reserved tate of trustees of an express trust. in a settlement. 27 As a power to trustees to lease ^^ § 80, The Real Prop. Law. is not, ordinarily, a beneficial power, ^4 j R_ g 7^3, § 92, now incorporated leases of twenty-one years are inde- in § 116, supra. pendent of § 123 of this act. 35 Cutting v. Cutting, 86 N. Y. at § 123, The Real p. 535 ; and see, infra, discussion un- der § 124 of this act. § 132, The Real 36 Kfote to section 116 of this act by Commissioners of Statutory Revision. § 123, The Real 37 gee the cases cited, infra, under 28 I R. S. 733, § 87 Prop. Law. 29 I R. S. 733, § 84 Prop. Law. 30 I R. S. 733, § 87 Prop. Law ; Cutting v. Cutting, 86 N. § 125, this act. Y. at p. 533- 476 Beneficial Power. Execution of a Beneficial and General Power. A beneficial and gen- eral power is well executed if the grantee of the power appoint to himself.^^ Advaneements under a Beneficial Power. This subject is controlled by a subsequent section of this act.^® Abolition of Beneficial Powers. As stated above the most compre- hensive reform instituted by the Revised Statutes in the old Eng- lish law of powers related to beneficial powers. In their notes to the article on Powers the original revisers say: " We have deemed it very important to limit the authority of the owners, in the crea- tion of beneficial powers. It appears to us, that in this country, it can hardly happen that such a power of disposition will be separated from the legal estate for any purpose that the law ought to favor."*" It behooves the professional draughtsman, therefore, to consider very seriously what beneficial powers remain authorized by this article on Powers, for if not so authorized, a beneficial power is now made void by this section. 3* Hubbard v. Gilbert, 2$ Hun, 596. *" Vide infra, appendix 11, note 8^ The Real Prop. Law, § 295. of original revisers on article on Powers. General Power in Trust. 477 § 117. General power in trust — A general power is in trust, where any person or class of persons, other than the grantee of the power, is designated as entitled to the pro- ceeds, or any portion of the proceeds, or other benefits to result from its execution. Formerly i Revised Statutes, 734, section 94: § 94. A general power is in trust, when any person or class of persons, other than the grantee of such power, is designated as entitled to the pro- ceeds, or any portion of the proceeds, or other benefits to result from the alienation of the lands, according to the power.*i Powers in Trust. The definition contained in the foregoing sec- tion coincides with the former equity rule. At law a power was never imperative, but where another than donee had an interest in its execution, the donee of the power was regarded in equity as a trustee.*^ Powers in trust have been to some extent considered before under other sections of this act,** and what is there said need not again be repeated. In our practice powers in trust may be powers of revocation and appointment, powers of distribution, partition, division, or powers of selection. Powers are in trust when the disposition authorized excludes from its enjoyment the grantee of the power,** or includes others besides himself.*^ Both a power and a trust are necessary to constitute a power in trust.*^ As was said in an early case under the Revised Statutes, " a power in trust is a mere authority to limit a use, and to constitute it there must always be a person other than the donee, or grantee, of the power, called the appointee, answering to the cestui que trust in a simple trust. * * * A power in trust is to be understood in contra- distinction to an estate in trust. * * * " A power in trust in- volves the idea of a trust as much as a trust estate*'^ What Trusts Valid as Powers. What trust purposes are valid as powers, this act does not (as it does in the case of the four trusts lawful**) attempt to specify.*** But powers in trust certainly excluded 41 Repealed, chap. 547, Laws of 1896. 47 Farmers' Loan & Trust Co. v. 42 Story, Eq. Jurisp., § 1061. Carroll, s Barb. 613; Towler v. 43 Vide under §§ yy, 79, supra. Towler, 142 N. Y. 371. 44 Downing v. Marshall, 23 N. Y. 48 Supra, § 76, The Real Prop. Law. 366, 379. 49 Downing v. Marshall, 23 N. Y. at 45 Smith V. Bowen, 35 N. Y. 83, 89; p. 380; Belmont v. O'Brien, 12 id. at cf. Towler v. Towler, 142 id. 371. p. 403 ; Selden v. Vermilya, 3 id. at p. 46 Sweeney v. Warren, 127 N. Y. at 536 ; Read v. Williams, 125 id. at p. p. 434 ; Delaney v. McCormack, 88 id. 569 ; Hillen v. Iselin, 144 id. at p. 380. at p. 181. 478 General Power in Trust. the four purposes specified in the 76th section of this act, and if such are bad as trusts, they are not validated as powers.^" The purposes which may be carried out as trust powers are the trusts lawful at the common law;®^ but now they must be active in their nature and not mere passive trusts.^^ Where the title to lands is in the person beneficially entitled, a valid power in trust cannot be given to a trustee to receive the rents and profits for the benefit of such person.^^ A perpetuity can never be accomplished by means of a power any more than by one of the express statutory trusts;^* nor can a trust purpose, effected by a power, contravene public policy ,^^ or violate equity or good morals.^^ Construction Favors Powers in Trust. The original revisers saw no objection to the retention of trusts of powers, and " powers in trust " are now favored.^'' An intention to create an express trust will not be implied when the purpose may be accomplished as a power.''* Thus, in construction, powers in trust are preferred to the four trusts lawful by the 76th section. Beneficiaries of Powers in Trust. In order to make an express^* trust valid as a power in trust, there must be a definite and certain 50 Supra, pp. 403, 404, under § 79 ; Booth v. Baptist Church, 126 id. 215 ; Trowbridge v. Metcalf, 5 App. Div. Sweeney v. Warren, 127 id. 426, 433; 318, citing Garvey v. McDevitt, 72 N. Tilden v. Green, 130 id. 29, S4 ; Hilleu Y. 5s6; Lang v. Ropke, 5 Sandf. at v. Iselin, 144 id. at p. 380; Staples v. p. 372 ; Kernochan v. Marshall, 165 Hawes, 24 Misc. Rep. 475, 477. N. Y. 472, 479; Staples v. Hawes, 39 55 Belmont v. O'Brien, 12 N. Y. at App. Div. 548 ; Murray v. Miller, 178 p. 403 ; Tilden v. Green, 130 id. 29, N. Y. 316. 54; Van Vechten v. Van Veghten, 8 51 Downing v. Marshall, 23 N. Y. Paige, 104, 124. 366, 367 ; Holly V. Hirsch, 135 id. 590, 56 Read v. Williams, 125 N. Y. 560, 594- 569; Sweeney v. Warren, 127 id. 426; 52 Townshend v. Frommer, 125 N. Hillen v. Iselin, 144 id. at p. 380. Y. 446, 457, 468; DePeyster v. Glen- ^'' Vide infra, Appendix H, notes dinning, 8 Paige, 295, 303; McComb of original revisers on article on v. Title Guarantee Co., 36 Misc. Rep. Powers. 370, 372- ^* Heermans v. Robertson, 64 N. Y. 53 Wood V. Wood, s Paige, 596; 332; Henderson v. Henderson, 113 id. McComb v. Title Guarantee Co., 36 i, 11; Matter of Conger, 81 App. Div. Misc. Rep. 370, 372 ; cf. Jennings v. 493, 499, et vide supra, p. 386. Conboy, 73 N. Y. 230. 69 Express is here used in its ordi- 54 Belmont v. O'Brien, 12 N. Y. 39s, nary meaning. Vide supra, p. 367. 403 ; Everitt v. Everitt, 29 id. 39, 78 ; note 85. Read v. Williams, 125 id. 560, 569; General Power in Trust. 479 beneficiary entitled to enforce the use or trust,*'" unless the limita- tion is to a charitable, educational, religious or benevolent use,, when certain ancient and more liberal rules are now directed to be applied by statute."^ Rule against Perpetuities. Trusts, operative as powers, are subject to the rule against perpetuities, for the same reasons stated in ref- erence to the four trusts lawful,^^ or because they suspend the vest- ing of the ultimate fee.*'^ The trustee of a power cannot alienate in contravention of the trust,^* and the rule against a perpetuity, there- fore, applies with full force to trusts intended to be operative as powers, whenever the power of alienation by the trustee is unduly suspended.® A power in trust is as imperative as any express trust created under the 76th section.^® While a peremptory power of sale does not, per se, suspend the power of alienation,®'' a power to sell and distribute does not necessarily relieve a trust limitation, otherwise invalid, from the effect of suspending the power of aliena- tion.'^* So if the execution of even a power of sale is, by any limita- tion, unduly postponed, such limitation violates the rule against a perpetuity, and is void,*^ unless the power is of such a nature as to be presently extinguished or merged.™ Where the power may be released by a person entirely sui juris, it would seem not to create a perpetuity." It is, however, well settled that where an absolute power of sale is conferred upon an executor, the addition 6" Tilden v. Green, 130 N. Y. 29 ; 8® § 137^ The Real Prop. Law. Prichard v. Smith, 95 id. 76 ; Matter w Garvey v. McDevitt, 72 N. Y. 556, of O'Hara, id. at p. 418 ; Read v. 563 ; Blanchard v. Blanchard, 4 Hun, Williams, 125 id. 560 ; Sweeney v. 287, 291 ; Henderson v. Henderson, Warren, 127 id. 426, 433. 113 N. Y. i, 12; Deegan v. Wade, 144 81 Chap. 701, Laws of 1893 ; § 93, id. S73 ; Eells v. Lynch, 8 Bosw. 465, The Real Prop. Law. _ 481. 82 i^M/jro, pp. 380, 381.' 68 Allen v. Allen, 149 N. Y. 280; 83 Dana v. Murray, 122 N. Y. 604, Brewer v. Brewer, 11 Hun, 147; Hob- 613; Booth V. Baptist Church, 126 id. son v. Hale, 95 N. Y. 588. 215, 239, 240. 69 Matter of Will of Butterfield, 133 8* Dana v. Murray, 122 N. Y. 604; N. Y. 473; Spitzer v. Spitzer, 38 App. Matter of Will of Butterfield, 133 id. Div. 437; Trask v. Sturges, 31 Misc. 473- Rep. 195- 65 Booth V. Baptist Church, 126 N. ™Hetzel v. Barber, 69 N. Y. i; Y. 215 ; Matter of Will of Butterfield, Garvey v. McDevitt, 72 id. 556, 563. 133 id. 473 ; Dana v. Murray, 122 id. ^1 Garvey v. McDevitt, 72 N. Y. at at p. 613. p. 563. 480 General Power in Trust. of words suggesting a time for its exercise, or indicating the tes- tator's desire in that regard, does not limit or restrain the action of the executor.'^^ Acts Lawful as Powers. A power is Hmited to the creation of such estates and the performance of such acts as the donor of the power could lawfully create or perform.''^ For the purposes of the rule against perpetuities a power relates back to the taking effect of the instrument creating it.^* Power in Trust, when General, when Special. A general power in trust is contradistinguished from a special power in trust.^^ A power in trust is general when any person other than the grantee is entitled to the proceeds.'* A general power in trust can never be executed for the benefit of the donee of the power.'^'^ In this respect it partakes of the nature of all trusts.''^ Precatory or Implied Powers in Trust. The cases where property is given to any one with a wish or entreaty to dispose of it in favor of another, may fall under powers in trust.'* Advancements under a Power in Trust. This subject is treated of under a subsequent section of this act.** Execution of a Power in Trust. Power to appoint to and among a class is generally assumed to refer to legal estates; but this is not invariable, and unless restricted, the appointment may it seems be to trustees.^i Where there is power to appoint to and among a class, and there is but one survivor of the class, he takes by virtue of the instrument creating the power and not under the power.*^ His interest becomes virtually a remainder. ■72 Deegan v. Wade, 144 N. Y. 573 ; laney v. McCormack, 88 id. 174, 181 ; Robert v. Corning, 89 id. 225; Hen- Wright v. Trustees Meth. Epis. derson y. Henderson, 113 id. 1; Church, i Hoff. Ch. 201. Chanler v. N. Y. Elevated R. R., 34 ^TQarvey v. McDevitt, 72 N. Y. App. Div. 30s, 307. SS6, 563. '3 Salmon v. Stuyvesant, 16 Wend. ra Cf. Farw. Pow., chap. 12. .324; Genet v. Hunt, 113 N. Y. 158. ^^ Supra, pp. 352, 358, 370; cf. Leg- '4 Genet v. Hunt, 113 N. Y. at p. gett v. Firth, 132 N. Y. 7, 11; Thomas 170; Townshend v. Frommer, 125 id. v. Wolford, 49 Hun, 145; Wells v. at pp. 461, 462; I R. S. 737, § 128, Seeley, 47 id. 109, 112. now § 158, The Real Prop. Law. so § 295, The Real Prop. Law. '5 See next section. 81 Kemp v. Kemp, 36 Misc. Rep. ™ Russell V. Russell, 36 N. Y. 581 ; 79, 87. Kinnier v. Rogers, 42 id. S3i, S35; ^^Kemp v. Kemp, 36 Misc. Rep. Dana v. Murray, 122 id. 604, 613 ; De- at p. 87. General Power in Trust. 481 § 1 1 8. Special power in trust — A special power is in trust, where either, 1. The disposition or charge which it authorizes is lim- ited to be made to a person or class of persons, other than the grantee of the power; or, 2. A person or class of persons, other than the grantee, is designated as entitled to any benefit, from the disposi- tion or charge authorized by the power.*^ Formerly i Revised Statutes, 734, section 95 : § 9S. A special power is in trust, 1. When the disposition which it authorizes, is limited to be made to any person or class of persons, other than the grantee of such power, entitled to the proceeds or any portion of the proceeds, or other benefit to result from the execution of the power : 2. When any person or class of persons, other than the grantee, is desig- nated as entitled to any benefit from the disposition or charge authorized by the power.84 Comment on Section 118, Supra. Having outlined the nature of all powers in trust under prior sections of this act, the reader is re- ferred to what is there said for the commoner principles.*^ This section 118 does not alter the essentials of the common law rela- tive to special powers in trust.®^ A power in trust being granted to one who had no estate in the lands affected by the power, was a power simply collateral at the common law,^'' but one in the nature of a trust.*® Special Powers in Trust. Powers of sale and distribution among the heirs of the testator, exclusive of one of the donees of the power, are special powers in trust under this section.** A special power in trust is well executed by an appointment to trustees of the beneficiary of the power, unless grantee is restricted to legal estates.*" Advancements under a Power in Trust. This subject is provided for in a subsequent section of this act.®i ^Cf. § IIS, supra. 882 Sugd. Pow. 158. 8* Repealed, chap. 547, Laws of 89 Smith v. Bowen, 35 N. Y. 83, 89 ; 1896. Cutting V. Cutting, 86 id. 522, 536; 85 §§ yy^ 79, 117, The Real Prop. Murray v. Miller, 178 N. Y. 316, 323. Law, pp. 388, 402, 477, supra. 90 Kemp v. Kemp, 36 Misc. Rep. 79. 86 Dominick v. Sayre, 3 Sandf. SSS- *^ § 295, The Real Prop. Law. 8^ Root V. Stuyvesant, 18 Wend, at p. 284. 31 482 Capacity to Grant a Power. § 119. Capacity to grant a power. — A person is not capable of granting a power, who is not, at the same time, capable of transferring an interest in the property to which the power relates. Formerly i Revised Statutes, 732, section 75 : § 75. No person is capable in law of granting a power, who is not at the^ same time, capable of aliening some interest in the lands to which the power relates.92 Comment on this Section. The rule stated in this section of The Real Property Law applies to all departments of the law of princi- pal and agent. The grantor of a power must have the necessary legal dominion over the property to be afifected by the power, and also the legal right to delegate an authority in respect of such dominion.^ Alien cannot Grant a Power. Those aliens who cannot hold property as against the State, would appear to be within the condemnation of this section, but whether before office found is a question of some refinement.®* We must consider that in this State an alien may transfer real property to a citizen so as to defeat the State's escheat.®^ Therefore if a power granted by an alien is executed by the grantee, to a citizen, such execution would seem complete to defeat the State's escheat, for the principle " qui facit per alium facit per se " applies to powers as to other agencies. ®2 Repealed, chap. 547, Laws of ** Cf. Co. Litt. S2a.; i Chance, Pow. i8g6. §§ 600, 601. »3 Selden v. Vermilya, 3 N. Y. 525, * §§ 7, 294, The Real Prop. Law. 536; Boasberg v. Cronan, 30 N. Y. St. Rep. 438; 9 N. Y. Supp. 664. How Power Granted. 483 § I20. How power may be granted. — A power may be granted either: 1. By a suitable clause, contained in an instrument sufficient to pass an estate in the real property, to which the power relates; or, 2. By a devise contained in a will. Formerly i Revised Statutes, 735, section 106: § 106. A power may be granted, 1. By a suitable clause contained in a conveyance of some estate in the lands, to which the power relates : 2. By a devise contained in a last will and testament.®* This Section does not Control Reservation or Revocation of Powers. This section does not control a reservation or a revocation of powers, as they are provided for elsewhere.^ Old Law Relating to Creation of Powers. In the ancient law of Eng- land powers were known in connection with uses only, and were enforced solely in equity.^ After the Statute of Uses, powers deriving their effect from that statute might be inserted in almost any instrument of conveyance good under that statute.®® But there were some subtle exceptions in reference to certain powers created by instruments not operating by transmutation of posses- sion, bargains and sales and covenants to stand seised.^ These exceptions it is unnecessary now to mention at large. Powers Created by Will. A power might also be created by will after the Statute of Wills.^ The Statute of Wills being enacted after the Statute of Uses, there was at first some doubt in England whether a use created by will was affected by the Statute of Uses.^ The eminent conveyancing counsel, Mr. Booth,* was, consequently, once of the opinion that powers under wills did not operate by 9" Repealed, chap. 547, Laws of ance ; et vide infra, for powers cre- 1896. ated by will. ®^The Real Prop. Law, §§ 124, 125, 1 Chance, Pow. 22-26; i Sugd. Pow. 128. 158, seq.; Gilb. Uses, 46. ^^ Supra, pp. 4S8, 459. 2 j Sugd. Pow. 171 seq.; Crabb, ®® Certainly in declarations of uses § 1966 ; Farw. Pow. 6, et vide infra. of fines and recoveries, and in re- ^ i Sugd. Pow. 172. leases. Farw. Pow. 3 ; Cruise, Dig^ * The great lawyer to whom Fearne tit. 22, chap. 13, § 13 ; cf. i Sand. Uses, diedicated his book. Probably after 163, seq., as to powers over estates Bridgetnan, Mr. Booth was the most perfected by a common-law convey- learned of the conveyancing counsel of England. 484 How Power Granted. way of use, and " that the execution of a power under a devise is not the limitation of an use; no, not when the devise is to uses."^ This opinion, Sugden states, Mr. Booth subsequently retracted.*' The fact is that all powers created by will were not common-law powers. Common-law powers were created by will, and so were powers deriving their effect from the Statute of Uses, for ulti- mately the Statute of Uses was held to operate on wills creating uses; e. g., devise to A. to the use of B.'^ But where there was no seisin to serve the power, but the testator devised " that A., the executor, shall sell," this was a common-law authority or power,® and not a power deriving its efifect from the Statute of Uses.* The Revised Statutes. The Revised Statutes, therefore, insti- tuted no innovation in authorizing a power to be created by will. No Particular Language Necessary to Create a Power. It has been already stated that no particular language is necessary in order to create a power,^" and this was so at common law.^^ What Instruments Power May be Created by. In view of the prior discussion concerning the validity of certain instruments creating powers, it was desirable to specify in the Revised Statutes in what instruments powers might be granted. Hence the original of this section,^^ which, however, is always to be read in connection with a cognate section.^^ Comment on Section 120, Supra. Section I20 of The Real Property Law has apparently changed the Revised Statutes," as it does not seem to require a power to be contained in an actual conveyance, but in an instrument sufficient to pass an estate in real property.^^ Yet the Commissioners of Statutory Revision, in their note on this section, state that the Revised Statutes are " unchanged in sub- stance." It is certain that since the abolition of seals this instru- 6 See I Harg. Collect. Jurid. 427, 10 Supra, pp. 370, 404. case in the Law of Uses. n Strahan, Prop. 171, et supra, 8 I Sugd. Pow. 239. p. 468. T I Sand. Uses, 195 ; 2 Fonb. Eq. 24; 12 i R. S. 735, § 106. I Jarm. Pow. Dev. 214, note 2; 217, 182 R. S. 134, § 6; id. 135, § 7, note 3 ; Ram. Wills, 254. as amended by chap. 322, Laws of 8 I Sugd. Pow. 240. i860, now in § 207, The Real Prop. 8 It is so stated, with the author!- Law. ties, in my Essay on Charitable Uses, 1* i R. S. 73s, § 106. at p. 142, and cf., under § 77, supra, is cf. Fellows v. Heerraans, 4 Lans. The Real Prop. Law. 230. How Power Granted. 485 ment need not now be a deed.^® Where there was a series of instruments inter vivos, entitled to be read together, and one of the instruments was a conveyance and the others not, it was held that a power might, under the Revised Statutes, be contained in any one of them,^^ and this is a fortiori true under the present section. But it has not otherwise been held that the power may be created by a separate instrument. Power Created by Will. When we come to the consideration of powers created by a will, i. e., contained in a devise,^* several ques- tions suggest themselves: (i) whether, if a particular devise in which a power is contained is void, the power may stand? (2) Whether, if the devise is to the heirs of the testator, as tenants in common, with a naked power of sale to executors, the power may be said to be good? At common law, where a devise is to an heir he is in by descent and not by the will.^^ As this continues the law since the Revised Statutes, the power in question might be claimed to be bad, as the devise is not in fact a devise, for there is no devise where there is no estate except by descent. In regard to the first question stated above, it will be remembered that a devise may certainly be bad as a trust, and yet good as a power; but this is so by statute.^" A like answer may, in substance, be made to the second question.^^ The language of this section evi- dently contemplates that a power may be " devised " by itself, and that it need not be contained in a devise of an estate in lands.^^ It is a not infrequent practice in this State to make a will simply nominating executors and leaving the estate to descend according to the existing canon of descents. It can hardly be claimed that a power of sale in such a will would not be a devise of a power, or that it was not granted by a devise contained in a will.^ When and how such a naked power may be extinguished is another question. 16 Vide, § 208, The Real Prop. Law. 21 Supra, § 77, The Real Prop. Law ; 1'^ Selden v. Vermilya, 2 Sandf. 568, et, p. 391. 580; and see § 231, The Real Prop. ^ Cf. Cutting v. Cutting, 86 N. Y. Law. at p. 530; Matter of McKay, 75 App. 18 Sometimes called " a devise of a Div. 78. power." 23 Barber v. Barber, 17 Hun, 72; 18 Cruise, Dig., tit. 38, chap. 8, § 2. Matter of McKay, 75 App. Div. 78; 20 Supra, § 79, The Real Prop. Law ; Crittenden v. Fairchild, 41 N. Y. 289 ; Tucker v. Tucker, s N. Y. 408; Lindo and see under § 77, supra, cases in V. Murray, 91 Hun, 335 ; et supra, reference to the survival of powers pp. 368, 388, 403. of sale. 486 Capacity to Take and Execute a Power. § 121. Capacity to take and execute a power. — A power may be vested in any person capable in law of holding, but can not be exercised by a person not capable of transferring real property. Formerly i Revised Statutes, 735, sections 109, iii: § 109. A power may be vested in any person capable in law of holding, but cannot be exercised by any person not capable, of aliening lands, except in the single case mentioned in the next section.24 § III. No power vested in a married woman, during her infancy, can be exercised by her, until she attains her full age.^" The Common Law. At common law a power might be vested in any person who might hold and dispose of an estate.^^ A married woman, though deprived of her dominion by marriage, might exe- cute a power over an estate, whether a power appendant, in gross, or simply collateral ;^^ an infant, not an alien, might execute a power simply collateral, but not a power appendant.^ There were some other questions made at common law about the right of per- sons non compotes mentis or civiliter mortui to execute powers, but which concern this section more remotely .^^ Infants. The questions which arose at common law concerning an infant's capacity to execute a power, are not, by this section, so explicitly put at rest as they might be, for many transfers by infants were not absolutely void at the common law; they were simply voidable. If an infant levied a fine and executed a deed to declare uses, the declaration was good until reversed, and so his deeds, and in many cases the infant's execution of powers.^** Can an infant then be said to be a person not capable of transfer- ring real property? ^^ In some cases an infant might transfer real property at common law. In New York an infant female could not irrevocably settle her property by way of marriage settle- 24 Repealed, chap. 547, Laws of 27 j Chance, Pow. chap. 7 ; i Sugd. i8g6. The next section here referred Pow. 180, seq. to was one relating to the execution 28 j Sugd. Pow. 211; i Chance, of a power by a feme covert, then Pow. 213-225 ; Farw. Pow. 125. under the common-law disability in 29 cf. i Chance, Pow. 225, 226. regard to her own estate. 3* McPherson, Infants (Am. ed. 26 Repealed, cha.^). 547, Laws of 1843), 475. 1896. *^ Vide supra, § 3, The Real Prop. 28 I Sugd. Pow. 180; Farw. Pow. Law, pp. 106, 108. 116. Capacity to Take and Execute a Power. 487 ment,^^ though this principle was sometimes doubted.*^ Such a settlement was not, however, void, ^* and this was so as to male infants. Yet he was sometimes bound by the female infant's antenuptial settlement. An infant might, by custom of London, devise to her husband,^' and it is well known that the customs of London were very influential in settling the common law of the British colonies. It is almost impossible to afHrm, therefore, that an infant may not, under certain circumstances, transfer real property by the common law of New York.*® Lunatics and Idiots. If lunatics and idiots are declared judicially incompetent to transfer real property, they of course cannot execute a power.*'' Person Not Capable of Transferring. A person not capable of transferring particular real property may in one instance execute a power over it, so as to estop himself from subsequently trans- ferring it when empowered so to do*® 32 Temple v. Hawley, i Sandf. Ch. 3* But see general statement to the 153. contrary in Clapp v. Byrnes, 155 33 Atherly, Marriage Settlements, N. Y. 535. 28, 41. 37 yide supra, § 3, The Real Prop. 3* Temple v. Hawley, i Sandf. Ch. Law ; i Chance, Pow. 225, 226. 153. 3* § 231, The Real Prop. Law. 35 Hargrave's note 4, Co. Litt. I lib; S Com. Dig. 14. 488 Capacity of Married Women to Take Power. § 122. Capacity of married woman to take power. — A general and beneficial power may be given to a married woman, to dispose, during her marriage, and without concurrence of her husband, of real property conveyed or devised to her in fee. Formerly i Revised Statutes, 732, section 80, and i Revised Statutes, 733, section no, and i Revised Statutes, 736, section 117: § 80. A general and beneficial power may be given to a married woman, to dispose, during her marriage, and without the concurrence of her husband, of lands conveyed or devised to her in fee.^* §110. A married woman may execute a power during her marriage, by grant or devise, as may be authorized by the power, without the concurrence of her husband, unless by the terms of the power its execution by her, during marriage, is expressly or impliedly prohibited.*** § 117. If a married woman execute a power by grant, the concurrence of her husband, as a party, shall not be requisite, but the grant shall not be a valid execution of the power, unless it be acknowledged by her on a private examination, in the manner prescribed in the third Chapter of this Act, in relation to conveyances by married women.^l The Common Law. While at the common law a married woman was sub postestate viri, and could not dispose of her own estate except by a fine or a recovery (or in the English colonies by a deed, separately acknowledged, after the custom of London),*^ yet, as an attorney for another, or by means of a power, she could convey an estate in the same manner as her principal, because the con- veyance was considered the deed of the principal, and not of the attorney.** But by means of settlements in trust and conveyances to her separate use, the ancient law had been much modified before the Revised Statutes of 1830.** The Revised Statutes. At the date of their taking effect,*^ the Revised Statutes made little change in the then existing legal status of a married woman, or in her ability to execute powers.*^ Long before 1830, and the subsequent married Women's Enabling 39 Repealed, chap. 547, Laws of -*3 1 Sugd. Pow. 181. 1896. ** Macqueen, Husband & Wife, ** Repealed, chaj). 547, Laws of chap. 3, pt. 2. 1896. 45 Jan. I, 1830. « Repealed, chapt S47, Laws of ^ewright v. Tallmadge, 15 N. Y. 1896. 307, 313; cf. Wadhams v. Amer. *2 Supra, p. 487, et vide infra, under Home Miss. So., 12 id. 415, 423; Lea- art. Vni, § 251, The Real Prop. Law. vitt v. Pell, 25 id, 474, 478. Capacity of Married Women to Take Power. 489 Acts, she had come, either at law or in equity, to have dominion over property Hmited in trust or to her sole and separate use. She might also execute all powers, appendant or collateral, as a feme sole; at least, provided a settlement contained an express dispen- sation of the disabilities then attending her coverture.*'' Object of I Revised Statutes, 732, Section 80. It is said that the ob- ject of I Revised Statutes, 732, section 80,*® was to prevent the husband's common-law rights by curtesy attaching on an absolute conveyance in fee to the wife.*'' I Revised Statutes, 735, Section no, and i Revised Statutes, 736, Section 117. I Revised Statutes, 735, section iio,^ and i Revised Statutes, 736, section 117,^^ generally stated the common-law rules. Such legislation was not an innovation on the common-law ,^^ excepting, perhaps, as to the mode in which a feme covert should acknowledge a deed in execution of her power, and this acknowledgment was to be in precise conformity to existing law, which in turn was founded on the old law of the province of New York relating to conveyances and the custom of old London. By the terms of a settlement the execution of a wife's power might always be made to depend on the husband's assent, as stated in i Revised Statutes, 735, section no. Under the Revised Statutes. Under the Revised Statutes, at least prior to 1848,°^ it was held that a married woman might not execute a power over her personal estate by will.^* If such a rule was in- tentional it was a departure of the revisers from the common law, and in a wrong direction.^^ The legislative amendment of 1867, in any event, finally provided that every female might bequeath her personal estate,^" thus explicitly removing any disability of a feme covert to execute a power of appointment or disposition by will of her personal estate. *'' I Chance, Pow. 181 ; i Sugd. ^i j Sugd. Pow. 191. Pow. 181, 191; Roper, Husb. & W., ^^ Supra, p. 488, et infra, § 251, The chaps. 19, 21 ; Macqueen, Husb. & W., Real Prop. Law. chap. 3, pt. 2 ; Notes to Hulme v. 53 Chap. 200, Laws of 1848 ; chap. Tenant, I White & Tudor, Lead. Cas. 375, Laws of 1849; 2 R. S. 60, § 21. in Eq. 536, 543 ; Richardson v. Pulver, B4 2 R. S. 60, § 21 ; Wadhams v. The 63 Barb. 67. Amer. Home Miss. So., 12 N. Y. 415. ^ Supra, p. 488. 55 Strong v. Wilkin, i Barb. Ch. 9; 49 Wright V. Tallmadge, 15 N. Y. Moehring v. Mitchell, id. 264. 307, 313- °® Chap. 782, Laws of 1867. 30 Supra, p. 488. 490 Capacity of Married Women to Take Power. Married Women's Acts. It was not until after the Constitution of 1846 that a series of acts, beginning with the year 1848, placed a married woman's separate estate on the same basis as the estate of feme sole.^'' These acts made a married woman's power of dis- position of her estate as absolute as that of a man's over his estate; indeed, they left her in a better position, for his curtesy initiate can now be defeated by her conveyance or will without her husband's assent,^^ whereas he cannot thus defeat her dower inchoate. Under the present law the separate acknowledgment of a married woman in any case is unnecessary.^® This was in accordance with pre- existing law-®" Effect of Section 122, Supra. In view of the status of a feme covert in the present law,®-' it is extremely improbable that this section of The Real Property Law now serves any end, except a declaration of the law otherwise stated. 57 Chap. 200, Laws of 1848 ; chap. ^^ Hatfield v. Sneden, S4 N. Y. 280, 576, Laws of 1853 ; chap. 375, Laws of 287 ; Burke v. Valentine, 5 Abb. Pr. 1849; chap. 90, Laws of i860; re- N. S. 164; 62 Barb. 412; Wells v. pealed by chap. 172, Laws of 1862; Belts, 45 App. Div. 115, 118; Matter chap. 249, Laws of 1879, as amd. of Baird, 30 Misc. Rep. 668; Matter by chap. 300, Laws of 1880; chap, of Clarke, 40 Hun, 237; Spindler v. 472, Laws of 1880; chap. 381, Laws of Gibson, 75 App. Div. 444. 1884; chap. 537, Laws of 1887; chap. ^^i 251, The Real Prop. Law. 51, Laws of 1890; chap. 594, Laws of ^^Chap. 249, Laws of 1879; chap. 1892; and see chap. 616, Laws of 300, Laws of 1880 ; Richardson v. 1892, as to release of dower by di- Pulver, 63 Barb. 67. vorced woman. See now " The Do- ""i The Domestic Relations Law, mestic Relations Law," chap. 48, constituting chap. 48 of the General General Laws; repealing and re-en- Laws; chap. 272, Laws of 1896. acting most of the foregoing acts. Capacity to Take Special and Beneficial Powers. 491 § 123. Capacity to take a special and beneficial power. — A special and beneficial power may be granted, 1. To a married woman, to dispose, during the marriage, and without the concurrence of her husband, of any estate less than a fee, belonging to her, in the property to which the power relates; or, 2. To a tenant for life, of the real property embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life; and such a power is valid to authorize a lease for that period but is void as to the excess. Formerly i Revised Statutes, 733, section 87 : § 87. A special and beneficial power may be granted, 1. To a married woman, to dispose, during the marriage, and without the concurrence of her husband, of any estate less than a fee, belonging to her, in the lands to which the power relates: 2. To a tenant for life of the lands embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life.«2 Comment on Section 123. The first subdivision of this section it should be remembered was first enacted at a time when the hus- band's common-law power to make leases of the wife's estate, and to take the rents and profits,** had not been entirely taken away by the Married Women's Act.^ Prior to those acts, and when the Revised Statutes were enacted, it was common practice for a settlor of an estate on a female to empower her, when a married woman, to make leases. Even where the property was limited to her separate use, a feme covert could not at common law dispose of it during the marriage otherwise than by fine or recovery; nor could she lease it unless a power to do so was given her by the settlement.*^ When she was thus empowered to make leases the husband's concurrence to her appointment was unnecessary.®* When such a power was contained in a settlement, Sugden's opin- ion generally was that the husband's consent was not necessary in any case to the wife's appointment, assuming the power to be well limited to her.*'' «2 Repealed, chap. 547, Laws of Dig., tit. 32, chap. S, § 73 J and id., tit. 1896. 32, §§ 34, 35; cf. Macqueen, Husb. & 68 I Roper, Husb. & W. SS, 9° ; 2 W. 33, 295. Kent, Comm. 130, 133. ** i Sugd. Pow. 191. 6* Supra, p. 490, n. 57. 6T j Sugd. Pow. 191. 65 2 Roper, Husb. & W. 182 ; Cruise, 492 Capacity to Take Special and Beneficial Powers. Section 123, Supra. This section, it will be observed, confines the grant of a special beneficial power to a married woman to such powers as were formerly denominated appendant. It does not in terms authorize or prohibit the giving to her of a special and bene- ficial power to dispose of an estate or interest not limited to her.^* The first subdivision of this section was originally drawn at a time when a married woman's power of disposition over her own estate was limited. The express retention of this section in this act was, therefore, not indispensable.'^ The first subdivision of this section has no relation to powers in trust,''" or to general beneficial powers.''^ It is very common to give a married woman a special or general power in trust, or a general beneficial power, such as a power to appoint estates in fee to her children or husband, or generally to her right heirs at her own will ; and such powers need not be appendant or appurtenant, or, in other words, need not depend on the estate of the grantee of the power.''^ Tenant for Life's Leasing Power. In regard to the second subdivi- sion of this section, we should recall that, without statutory au- thority or the grant of a power, tenants for life had no right to make leases beyond their own lives. They had no authority to bind estates in remainder or reversion.''^ A statute in the time of King Henry VIII first gave tenants in tail, and a husband, seised in right of his wife (provided the wife joined), power to make leases for definite terms of twenty-one years to commence in possession.''* Where a general power was granted to make leases, it was always construed to authorize leases in possession and not in reversion.''^ But a settlor of an estate might, independ- ently of statute, grant a power to make leases, as well in possession as in reversion, and a lease to bind the reversion was then good.''® In such cases the rents followed the reversion or remainder.''^ 68 Jackson v. Edwards, 7 Paige, 386, 522, 532; and see Genet v. Hunt, 113 400; affd., 22 Wend. 498; Cutting v. id. 170, as to power there mentioned Cutting, 86 N. Y. 522, S33; Matter in first settlement conceded valid. of Zefita, Countess de Rohan-Chabot, ''^ Smith, Real & Pers. Prop. 528; 167 id. 280. Taylor, Landl. & Ten., § 113; Mulli- 69 See under preceding section. gan v. Cox, 26 Misc. Rep. 709. TO The Real Prop. Law, § 117. ''* 32 Henry VHI, chap. 28. Ti Jackson v. Edwards, 22 Wend. ''^ Cruise, Dig., tit. 32, chap. IS, § 24. 498, 508. ''* Cruise, Dig., tit. 32, chap. 15, ''^ Jackson v. Edwards, 22 Wend. § 41 ; 2 Sugd. Pow. 338 ; Farw. Pow. 498, 508; Kane v. Aster's Exrs., 9 N. (ist ed.) 481. Y. 113; Cutting V. Cutting, 86 id. ''''2 Chance, Pow. 220. Capacity to Take Special and Beneficial Powers. 493 Leases by Trustees of the Statutory Trusts. A most interesting ques- tion also arises since the Revised Statutes, concerning leases by trustees of the express or statutory trusts. They are expressly declared to have the whole estate or a fee simple/* yet in several cases they are treated as tenants pur autre vie. If a trustee of an express trust, mentioned in the 76th section of this act, has an estate pur autre viei'^ then it is obvious that this section had origin- ally no relation to such estates of trustees, and that it referred wholly to limitations of estates for life of grantee, for it confines the leases to twenty-one years to commence in possession during the life of tenant for life. This cannot refer to an estate pur autre vie.^ Leases by Life Tenants in Excess of One and Twenty Years. Before The Real Property Law it was also intimated that leases by life tenant beyond twenty-one years were, under the Revised Statutes, void in toto, and not as to the excess only.^^ The Commissioners of Statutory Revision have remodeled the section so as to make the term in excess of twenty-one years only void.^^ Leasing Power not Separately Assignable. It is to be observed that the power of a life tenant to make leases is not assignable as a separate interest.®* But a mortgage by life tenant does not extin- guish a leasing power.** Leases of Agricultural Lands. A power to make leases for twenty- one years under this section is now overridden by the Constitution in cases of rental leases of agricultural lands. *^ Leases. Leases are the mode in which chattel interests in lands are usually created or acquired.®® If for a longer term than one year they must be in writing. 87 78 yide supra, pp. 407, 408, 409. 257 ; cf. Matter of McCaffrey, 50 Hun, 79 Supra, pp. 273, 407, 409 ; cf. Mat- 371. ter of McCaffrey, 50 Hun, 371, 374 ; 82 gge the note to this section by Gomez v. Gomez, 147 N. Y. 195, 200; Commissioners of Statutory Revi- Matter of Hoysradt, 20 Misc. Rep. sion, Appendix I, infra. 265, 270 ; Matter of Armory Board, ^^ Infra, § 135, The Real Prop. Law. 29 id. 174; Matter of City of New ** /n/ro, § 136, The Real Prop. Law. York, (iioth Street), 81 App. Div.27. 85 Art. I, Const. 1846; art. I, Const. 80 Matter of City of New York 1894-5, § I3 I 'vide supra, pp. 78, 144. (iioth Street), 81 App. Div. 27. »^ Supra, p. 142. 81 Root V. Stuyvesant, 18 Wend. ^7 yi^g infra, § 207, The Real Prop. Law. 494 Reservation of a Power. § 124, Reservation of a power — The grantor in a conveyance may reserve to himself any power, beneficial or in trust, which he might lawfully grant to another; and a power thus reserved, shall be subject to the provisions of this article, in the same manner as if granted to another. Formerly i Revised Statutes, 735, section 105: § 105. The grantor in any conveyance, may reserve to himself any power, beneficial or in trust, which he might lawfully grant to another; and every power thus reserved, shall be subject to the provisions of this Article, in the same manner as if granted to another.88 Old Law Concerning Powers of Revocation. At common law a power of revocation could not be reserved or granted, for it was deemed repugnant to the grant.*** But after the Statute of Uses, powers of revocation might be reserved in almost any conveyance,** except bargains and sales and covenants to stand seised, which were not effected by transmutation of possession.®' When the statute of 27 Elizabeth, chapter 4, made instruments containing powers of revo- cation reserved to settlors fraudulent as against subsequent pur- chasers of the settlor, they fell into disuse in voluntary settle- ments.®^ But they remained in common use in connection with powers of appointment in settlements not voluntary and in devises.'* The likeness between powers of revocation and conditions in deed is sometimes noticed.®* The power most usually reserved to a settlor was formerly a power of revocation, and this power, al- though a beneficial power, may be reserved in settlements since the Revised Statutes.*® But such a power may be void as against subsequent purchasers from the donee of the power.®^ Thus a conveyance by intending husband to trustees for the benefit of a future wife, with power to settlor to revoke in case the contem- plated marriage shall not take place, is a valid reservation.®'' It does not avoid the whole settlement as to creditors of the hus- 88 Repealed, chap. 547, Laws of 404 ; Van Cott v. Prentice, 104 id. 45 ; 1896. Von Hesse v. MacKaye, 136 id. 114; 89 Co. Litt. 237a. Locke v. F. L. & T. Co., 140 id. 135, 90 Supra, p. 459, under § no, The 142; Campbell v. Low, 9 Barb. 585; Real Prop. Law. Matter of Masury, 28 App. Div. 580; 91 I Sugd. Pow. 160, 177. affd., 159 N. Y. 532; Matter of Bost- ^ Supra, p. 4S9, under § no, The wick, 160 N. Y. 489; Schreyer v. Real Prop. Law. Schreyer, 43 Misc. Rep. 520; § 231, 93 Supra, pp. 459, 460. The Real Prop. Law. 9* I Chance, Pow. 106. 96 § 231, The Real Prop. Law. 95 Belmont v. O'Brien, 12 N. Y. 394, 97 Xhis is a " beneficial power," but Reservation of a Power. 495 band,^^ for marriage is the highest consideration known to the law, even as against creditors, and under the statutes against fraudulent conveyances. Consequently the power is not absolute in a mar- riage settlement. Powers of Appointment. Powers of appointment may certainly be granted under this article, as under the Revised Statutes,^^ and, therefore, may, according to this section, be reserved to grantors in conveyances, unless such powers are purely beneficial and con- demned by section ii6 of this act.* Usual Powers in Settlements of Estates. The powers formerly in- serted in most settlements of estates were leasing powers, powers of sale, powers to charge generally, pow^ers to jointure, and powers to make advancements to children. It is apprehended that most of these powers, if not beneficial powers only, may be lawfully granted under this article, and, therefore, may be lawfully reserved to a grantor.^ This would be very clear were it not that all powers are now declared either beneficial or in trust;* and that beneficial powers not authorized by this article are declared void.* But in the case of Cutting v. Cutting,^ it is to be observed that the court declined to place the very narrow construction there contended for, on the section declaring certain beneficial powers void.® Leasing Power in Trust. A leasing power, if in trust, is now valid as an express statutory trust,'' or as a power in trust,* in some cases. So a special beneficial power to make leases may be given to a life tenant.* Whether a settlor of an estate may now reserve to himself a power to make leases, and receive the rents for his own benefit, where he does not reserve a life estate, is another question. Such a power is certainly a special beneficial power under the i i6th section, and it falls under the condemnation of that section.*" The reservation of such a power in a settlement would, as it is one mentioned in this article ^ Supra, § ii6, The Real Prop. of this law it is not void under § ii6. Law; 4 Kent, Comm. 337. supra; Marvin v. Smith, 56 Barb, at p. ^4 Kent, Comm. 336, 337. 60s ; Cutting V. Cutting, 86 N. Y. 3 Supra, pp. 471, 474. 522, 534. * Supra, § 116, The Real Prop. Law. 98 Cf. § I2S, The Real Prop. Law, 5 86 N. Y. at p. 535. and § 231, ibid. 6 i r. s. 733, § 92. 99 Supra, p. 466 ; Cutting v. Cutting, 7 § 76^ The Real Prop. Law. 86 N. Y. 522; Genet v. Hunt, 113 8§ 77^ The Real Prop. Law. id. 158; Hume v. Randall, 141 id. 9§ 123, The Real Prop. Law. 499 ; Read v. Williams, 125 id. at p. 19 Cf. Root v. Stuyvesant, 18 Wend. 569- 496 Reservation of a Power. however, be tantamount to the reservation of a Hfe estate, or to the grant of a remainder, both valid hmitations." A leasing power at common law was nothing but a declaration of a future use,^^ and the reservation of a leasing power with the right to take the rents would now be a declaration of a use to the grantor, which, if not good as a power, might be good as the reservation of an estate, if less than a fee.^* Distinction Between Reservation of a Power and Reservation of an Estate. The distinction between a reservation of a power and the reserva- tion of an estate is not always clear at the present day.^* A reser- vation is always construed in favor of a grantee for value.^^ Reservation of a Power to Mortgage. A reservation of a power to mortgage or charge may be valid. It is but a power of revocation,^^ which, if absolute, is void as to creditors, purchasers and debtors only, under subsequent sections of this act." Power to Charge Generally. A power to charge generally,^* and a power to jointure,^* may be granted to another, and, therefore, may be reserved under this section, and as between grantor and grantee of the power, such a power to charge generally is valid, and sub modo it is valid as to the limitation in remainder.^" A power of sale to be exercised only with the consent of the grantor, and to be manifested by the grantor's joining in the deed, constitutes a valid reservation,^^ for such a power may be granted to another.^^ 257. In the case of Fitzgerald v. Fau- i^ Myers v. Bell Telephone Co., 83 conberge, Fitz. 207, 3 Bro. P. C. S43, App. Div. 623; Mason v. Thwing, g4 a general leasing power was reserved id. 77. to settlor, and treated as good at ^^ Campbell v. Low, 9 Barb. 585, common law. But see § 13s, The 592, 593; Marvin v. Smith, 56 id. 600. Real Prop. Law. i'' Vide infra, §§ 125, 129, 130, 131, 11 Matter of Brandreth, 169 N. Y. 132, 133, 139 and 231 The Real Prop. 437, 440- Law. 1^2 Chance, Pow. 219. is Jackson v. Edwards, 22 Wend. 13 Towler v. Towler, 142 N. Y. 371, 498, 508. 376. How far a power and a fee may is Towler v. Towler, 142 N. Y. 371. coexist in the same person, consid- 20 f/j^g infra, §§ 125, 129, 130, 131, ered : I Chance, Pow. 16, 17 ; Farw. 132, 133, 139, The Real Prop. Law. Pow. (ist ed.) 27; 4 Kent, Comm. 21 Kissam v. Dierkes, 49 N. Y. 602; 348. § IS3, The Real Prop. Law, and cases 1* Towler v. Towler, 142 N. Y. 371 ; there cited. Matter of Brooklyn Trust Co., 34 22 Stokes v. Hyde, 14 App. Div. Misc. Rep. 205 ; Lewis v. Howe, 64 530 ; Phillips v. Davies, 92 N. Y. 199. App. Div. 572. Power of Revocation. 497 § 125. Effect of power to revoke — Where the grantor in a conveyance reserves to himself for his own benefit, an absolute power of revocation, he is to be still deemed the absolute owner of the estate conve}'ed, so far as the rights of creditors and purchasers are concerned. Formerly i Revised Statutes, 733, section 86 : § 86. Where the grantor in any conveyance shall reserve to himself, for his own . benefit, an absolute power of revocation, such grantor shall be deemed the absolute owner of the estate conveyed, so far as the rights of creditors and purchasers are concerned.23 Reservation of a Power of Revocation. A reservation of a power of revocation long before the Revised Statutes endangered the instru- ment containing it, after the statute of 27 Elizabeth, chapter 4, at least in a voluntary settlement and as to subsequent purchasers.^* While the statute (13 Eliz., chap. 5) did not expressly avoid such instruments as to creditors, a power of revocation to a settlor was deemed a badge of fraud, as he thereby remained the owner of the property .^^ These statutes were, in substance, re-enacted in New York,^^ and the Revised Statutes made them only more explicit as to powers of revocation.^'' Effect of Section 125. The present section (125) of this act likewise avoids instruments containing absohUe powers of revocation,. but only as to creditors and subsequent purchasers. Its construction depends on the principles long animating the adjudications on the statutes directed against fraudulent conveyances. An instrument reserving or creating an absolute power of revocation to settlor may be valid inter partes^ and void as to the State and other credit- ors and purchasers prejudiced.^* 23 Repealed, chap. 547, Laws of 499 ; Belmont v. O'Brien, 12 N. Y. 1896. 394, 404 ; Van Cott v. Prentice, 104 id. 2*2 Chance, Pow. 150; Sugd. Vend. 45; Von Hesse v. MacKaye, 136 id. 475; Riggs v. Murray, 2 Johns. Ch. 114; Locke v. F. L. & T. Co., 140 id. 56s, 579, 580; cf. § 231, infra, The 135, 142; Oilman v. McArdle, 99 id. Real Prop. Law. 451, 457; Lore v. Dierkes, 16 Abb. 25 Peacock v. Monk, i Ves. Sr. 132 ; N. C. 47, 54 ; Matter of Masury, 28 2 Chance, Pow. 162 seg. App. Div. 580; affd., 159 N. Y. 532; 26 2 J. & V. 88 ; I R. L. 75, and vide Matter of Bostwick, 160 id. 489 ; infra, under §§ 226, 231, The Real The Real Prop. Law, §§ 226, 227, 228. Prop. Law. 29 1^ supra; Von Hesse v. Mac- 2Ti R. S. 733, § 86; 2 R. S. 114, Kaye, 136 N. Y. 114; The Real Prop, i 3- Law, § 231. 28 Conkling v. Davies, 14 Abb. N. C. 32 498 Power of Revocation. Reservation of Power of Revocation in Marriage Settlements. But a res- ervation of a power of revocation in a settlement made in contem- plation of marriage, in the event that the marriage do not take place, is not an absolute power of revocation within the meaning of this section.^" Where the reservation of a power absolute is con- tained in a covenant to stand seised, or where a fee results to the donee of the power, a question may arise how far a fee and a power may co-exist.''^ Power of Revocation Appropriate in Some Settlements. Not only does the reservation of a power of revocation not invalidate the instru- ment in which it is contained in all cases, but such a power is re- garded oftentimes as most appropriate, and its omission will be remedied at the suit of the settlor.^^ Creditors. As to the mode in which a power of revocation may be enforced by creditors, see section 139;^^ and as to its effect against subsequent purchasers, see section 231.^* Execution of Power of Revocation. What is an execution of a power of revocation in some instances is specified in a subsequent section of this act.^^ 3* Cf. Belmont v. O'Brien, 12 N. Y. 499 ; Barnard v. Gantz, 140 N. Y. 249 ; 394, 404; Schreyer v. Schreyer, 43 cf. Gibbs v. N. Y. Life Ins. Co., 14 Misc. Rep. 520, and § 231, The Real Abb. N. C. i ; Schreyer v. Schreyer, Prop. Law. 43 Misc. Rep. 520, and see cases cited 31 I Chance, Pow. 16, 17; 2 id. note 28, p. 497, and § 231, The Real 623; Farw. Pow. (ist ed.) 27; Good- Prop. Law. eve, Real Prop. 304 ; Rankine v. ^3 Infra, The Real Prop. Law. Metzger, 69 App. Div. 264; Co. Litt. ^^ Infra, The Real Prop. Law. 237a. ^§ 231, The Real Prop. Law. 32 Conkling v. Davies, 14 Abb. N. C. Power of Sale in Mortgage. 499 § 126. Power to sell in a mortgage — Where a power to sell real property is given to a mortgagee, or to the grantee in any other conveyance intended to secure the payment of money, the power is deemed a part of the security, and vests in, and may be executed by any person who, by assignment or otherwise, becomes entitled to the money so secured to be paid. Formerly i Revised Statutes, 737, section 133: § 133. Where a power to sell lands, shall be given to the grantee, in any mortgage or other conveyance intended to secure the payment of money, the power shall be deemed a part of the security, and shall vest in, and may be executed by any person, who, by assignment or otherwise, shall become entitled to the money so secured to be paid.^^ Comment on Section 126. At common law, if a power of sale was limited to a mortgagee, his heirs and assigns, the transferee of the mortgage might exercise the power.^'^ But otherwise it was doubt- ful.^^ The Revised Statutes dispensed with the necessity of a for- mal limitation to the assignees or heirs of the mortgagee. The assignment of the security now always carries with it the power of sale, contrary to the maxim, delegatus non potest delegare,^^ and with out the necessity of any limitation of the power of sale to the as- signs or heirs of the original mortgagee. It is a power coupled with an interest.*" Powers Coupled with Interest. It is a general rule that a naked authority expires with the life of the person who gave it,'*^ but a power coupled with an interest is not revoked by the death of the grantor.*^ Chancellor Kent was of the opinion that even before the Revised Statutes, a power of sale in a mortgage was a power with an interest.*^ The Revised Statutes put an end to all doubt upon the subject.** 36 Repealed, chap. 547, Laws of i, 15 ; Houghtaling v. Marvin, 7 Barb. 1896. 412. 3'' I Chance, Pow. 262 ; Shaw v. *i Farmers' Loan & Trust Co. v. Summers, 3 Moo. 196; Bergen v. Wilson, 139 N. Y. 284. Bennett, i Caines Cas. i ; Wilson v. *2 white v. Wagner, 31 Misc. Rep. Troup, 2 Cow. 195, 236. 408. 38 An assignment might carry the *3 Bergen v. Bennett, i Cai. Cas. at power of sale in equity. Cf. 1 Jones, p. 15. Mort. § 826. **i R. S. 737, § 133, supra; Ter- 39 Waterman v. Webster, 108 N. Y. wiliger v. Ontario & S. R. R. Co., 149 IS7, 164. N. Y. 94. *'' Bergen v. Bennett, i Caines Cas. 500 When Power is a Lien. § 127. When power is a lien A power is a lien or charge on the real property which it embraces, as against creditors, purchasers and encumbrancers in good faith and without notice, of or from a person having an estate in the property, only from the time the instrument containing the power is duly recorded. As against all other persons, the power is a lien from the time the instrument in which it is con- tained takes effect. Formerly i Revised Statutes, 73S, section 107 : § 107. Every power shall be a lien or charge upon the lands which it embraces, as against creditors and purchasers in good faith and without notice, of or from any person having an estate in such lands, only from the time the instrument containing the power shall be duly recorded. As against all other persons, the power shall be a lien from the time the instrument in which it is contained, shall take effect.'*^ Recording Acts. This section is a part of the systematic legislation relating to the recording of certain instruments in public record offices.*^ In principle it is cumulative, as every deed must be recorded to be good as against persons without notice,*'' and every will, to become effective, probated, and a power can be created in these instruments only.*^ What applies to the entire instrument must apply to a part of it. When an instrument containing a power is recorded, the record operates only according to the legal effect of the limitation. It cannot revive an extinguished power.*® Effect of Recording on Extinguished Power. This section has no appli- cation to a case where a power is extinguished even by. consent of the parties in interest. In Prentice v. Jansen a will directed certain real estate to be converted into money and the proceeds distributed. The parties beneficially interested in the execution of the power elected to take the land, which extinguished the power. It was held in substance that this section had no application to such a case, as the mere act of recording the instrument in which a power was granted could not revive an extinguished power.^** 46 Repealed, chap. 547, Laws of 48 Supra, § 120, The Real Prop. i8g6. Law. 46 Infra, art. VIII, The Real Prop. 49 Prentice v. Jansen, 79 N. Y. 478, Law. 486. 4T Infra, § 241, The Real Prop. Law. ^ Prentice v. Jansen, 79 N. Y. 478. When Power is Irrevocable. 501 § 128. When power is irrevocable. — A power, whether bene- ficial or in trust, is irrevocable, unless an authority to re- voke it is granted or reserved in the instrument creating the power. Formerly i Revised Statutes, 73s, section 108: § 108. Every power, beneficial or in trust, is irrevocable, unless an authority to revoke it, is granted or reserved in the instrument creating the power.^i Comment on Section 128. This section relates to the construction of original limitations of powers. It establishes a uniform rule. In so far as deeds creating powers were concerned, before the Revised Statutes, some grants of powers were in their nature revocable, others not.^^ Chancellor Kent states that the Revised Statutes^^ gave due stability to the rules of construction by declaring grants of powers irrevocable, unless an authority to revoke them be ex- pressly granted or reserved.^* Powers of Attorney. But this rule has no relation to common-law powers of attorney,^^ which remain in their nature revocable, unless coupled with an interest.^® Powers in the Nature of Uses. Powers in the nature of uses, oper- ating under this article, if created by deed, are no longer revocable, unless an authority to revoke them be contained in the deed.^''^ It is otherwise as to powers created by wills which are revocable, for it is the nature of a will to be ambulatory until the death of the testator or until revoked by a subsequent will.^* This Section does not Apply, when. The rule stated in this section does not apply in the construction of deeds in execution of a power. ^^ Prior to the Revised Statutes, a deed in execution of a Bi Repealed, chap. 547, Laws of 57 Supra, § 128, The Real Prop. 1896. Law; Marvin v. Smith, 46 N. Y. S7i, 02 I Chance, Pow. 175, 473. 577 ; Smith v. Terry, 38 App. Div. 53 I R. S. 735, § 108, now this sec- 294, 397 ; Rochevot v. Rochevot, 74 tion. id. 58s, S90. 5*4 Kent, Comm. 337. 884 Kent, Comm. 336; cf. Conover 55 § no, The Real Prop. Law; v. Hoffman, i Abb. Ct. App. Dec. Hutchins v. Hebbard, 34 N. Y. 24; 429. Heermans v. Burt, 78 id. at p. 267. 59 fhe section, in terms, refers to 56 I Chance, Pow. 105 ; Hutchins v. instruments creating powers, not to Hebbard, 34 N. Y. 24; Morgan v. those executing them. Raynor, S Alb. Law Jour. 109. 502 When Power is Irrevocable. power of revocation and new appointment, must contain a similar power of revocation, or it was executed once and for all and was irrevocable,^" notwithstanding a power to revoke might ordinarily be executed toties quoties, if it was so reserved in the deed of execu- tion." This must still be the rule. So, where a power is to be executed by will, and is so executed, it still may be revoked by a subsequent will or codicil, without any reservation, and as before the Revised Statutes.^^ Covenant not to Execute Power of Revocation. A present power of revocation might by the common law be released,^* and no doubt in equity a covenant not to exercise such a power may in certain cases be still good. Certainly before the Revised Statutes " cove- nants not to exercise powers in particular events or without the consent of others were not infrequent, and probably such a cove- nant operated, at least in some cases, as a legal defeasance or restraint of the power." ^ 60 Farw. Pow. 271 ; i Sugd. Pow. 593, S94 ; 'vide infra, § 147, The Real 462. Prop. Law. 61 Farw. Pow. 269; i Sugd. Pow. ^^2 Chance, Pow. 591. 462. 6* 2 Chance, Pow. 591 ; note 241, 62 Austin V. Oakes, 117 N. Y. 577, Co. Litt. 237a; cf. Brown v. Cod- dington, 72 Hun, 147. Certain Powers, a Fee. 503 I 129. When estate for life or years is changed into a fee. — Where an absolute power of disposition, not accompanied by a trust, is given to the owner of a particular estate for life or for years, such estate is changed into a fee absolute in respect to the rights of creditors, purchasers and encum- brancers, but subject to any future estates limited thereon, in case the power of absolute disposition is not executed, and the property is not sold for the satisfaction of debts. Formerly i Revised Statutes, 732, section 81 : § 81. Where an absolute power of disposition, not accompanied by any trust, shall be given to the owner of a particular estate, for life or years, such estate shall be changed into a fee, absolute in respect to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power should not be executed, or the lands should not be sold for the satisfaction of debts.^^ Comment on Section 129. The Commissioners of Statutory Revi- sion disclaim any intention to change the rule established by the Revised Statutes,*^ although they have introduced the word " en- cumbrancers." Sections 131, 132 and 133 of this article are in pari materia and are to be read in connection with this section. Former Law of Powers of Disposition. Chancellor Kent laid it down as an incontrovertible proposition at the common law, that '' where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee, and the only exception to the rule is where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion. This distinc- tion is carefully marked and settled in the cases. Tomlinson v. Dighton, I Salk. 239, i P. Wms. 149, etc." ^^ A distinction was, however, made between a devise and a deed in this respect. In a conveyance such a limitation would merely confer a power on the party and not give him an estate in fee.** The distinction was ®B Repealed, chap. 547, Laws of Robins, 16 Johns. 537, 588 ; Helmer 1896. V. Shoemaker, 22 Wend. 137; Ger- es Note to this section of The Real mond v. Jones, 2 Hill, 569 ; 4 Kent, Prop. Law, Appendix I, infra. Ccmm. S35. S36. 8' Jackson ex dem. Livingston v. ** i Sugd. Pow. 121. 504 Certain Powers, a Fee. slight between a gift for life with a power of disposition added and a gift to a person indefinitely, with a superadded power to dispose by deed or will. A gift to A., and to such person as he shall appoint, is absolute property in A. without an appointmerit ; but if it is to him for life, and after his death to such person as he shall appoint by will, he must make an appointment in order to entitle him to anything.^* It is to be noticed that Sugden attempts to reconcile the cases on this point.™ The Revised Statutes. The Revised Statutes also recognized that a plenary power of disposition of an estate in fee was the highest attribute of absolute dominion, and ought to pass a fee, whether the donee of the power had,'^^ or had not,''^ an estate in the lands subjected to the power. They made no distinction between a case where such a power was given by deed and one where it was given by devise. Sections 129 to 135 of this act now embody the same principles formulated in the Revised Statutes.''^ Absolute Power of Disposition. The gift of a power to be exercised on certain contingencies only, is not an absolute power of disposi- tion within the meaning of this section, so as to carry a fee.'* The power, to be " absolute,'' must be unqualified.'® When Section 129, Supra, does not Apply to Trust Estates. This sec- tion'^ applies to a limitation whereby a grantee has a legal estate in the lands, but not to a mere power to dispose, by will, of a trust estate vested in trustees." Cutting v. Cutting is the leading case on this point, and will be next considered, as it now furnishes a rule of property in this State. Cutting V. Cutting. In the case of Cutting v. Cutting, there was an effort to subject to the claims of creditors a fund held in trust, where the beneficiary had also a general beneficial power of appointment 69 Sir W. Grant, Bradly v. West- '* Weinstein v. Weber, 178 N. Y. cott, 13 Ves. Jr. at p. 453. 94. 100; Jackson v. Edwards, 22 'Oi Sugd. Pow. 124. Wend. 498, 509, affg. Jackson v. ''I § 129, supra. Edwards, 7 Paige 386 ; and see below '^i 130, The Real Prop. Law, i R. under this section 129, for other S. 732, § 82; Cutting V. Cutting, 86 cases. N. Y. at p. S38. '5 yidg infra, p. 505. '3 Hume V. Randall, 141 N. Y. 499 ; 76 § i2g^ supra. Deegan v. Wade, 144 id. S73, 578 ; 77 Cutting v. Cutting, 86 N. Y. at p. Matter of Moehring, 154 id. 423, 4^7 ; S32 ; Hume v. Randall, 141 id. at p. Wendt V. Walsh, 164 id. 154, 159. 505; Genet v. Hunt, 113 id. 158. Certain Powers, a Fee. 505 by will and had exercised itJ* At common law the execution of a general power of appointment subjected the property to the claims of the creditors of the donee of the powerJ^ But this rule was abrogated by the Revised Statutes, and it was held that the exer- cise of the power of appointment by will over the trust estate did not subject the corpus of the trust estate to the claims of the credit- ors of the grantee of the power, and that the power was well exe- cuted.*" A late case does not seem to distinguish between a power v/hich subjects interests to the claims of creditors and one which destroys a trust.*' Effect of Absolute Power of Disposition. Where an absolute power of disposition, not in trust,** is annexed to a legal estate for life, or years, the power now passes a fee absolute as to creditors and purchasers (and incumbrancers),*^ whether the power is to be exe- cuted by deed or will, and whether it is, or it is not, exercised.** This rule is subject, however, to the proviso that if the power is not executed, or the rights of creditors and purchasers do not prevent, estates limited after such life estate, or estate for years, shall vest according to the original limitation.*® In order to change the es- tate, dominated by a power of disposition, into a fee absolute as to creditors, purchasers and incumbrancers of the grantee of the power, the power of disposition must be absolute, not qualified.*® ''*86 N. Y. 522; cf. Ullman v. this is so even as to executors. Kin- Cameron, 92 App. Div. 91. nier v. Rogers, 42 N. Y. 531, S34; ■^9 See Johnson v. Gushing, 4 vide, p. 388, supra; Mitchell v. Van Sliarsw. & Budd's Lead. Cas. Real Allen, 75 App. Div. 297; cf. Rose v. Prop, s ; and id. note p. 26 ; 2 Sugd. Hatch, 125 N. Y. 427. Pow. 128. *5 Supra, § 129, The Real Prop. 80 Cutting V. Cutting, 86 N. Y. 522 ; Law ; see cases cited infra, under Life Genet v. Hunt, 113 id. 158; First Nat. Tenant's Power to Dispose of Corpus; Bank v. Mortimer, 28 Misc. Rep. 686; Terry v. Rector, etc. of St. Stephen's Wilson V. Van Epps, 38 id. 486; cf. Church, 79 App. Div. 527; Weinstein Solley V. Westcott, 43 id. 188, 195. v. Weber, 178 N. Y. 94. 81 Solley V. Westcott, 43 Misc. Rep. 86 Waring v. Waring, 17 Barb. 555 ; 188, 195. Jackson v. Edwards, 7 Paige, 386, 82 As to what is an absolute power 400; s. c, 22 Wend. 498, 509; Acker- of disposition by devise or deed, see man v. Gorton, 67 N. Y. 63, 66; §§ 132, 133, The Real Prop. Law. Crooke v. County of Kings, 97 id. 421, 83 Vide supra, § 129. 433 ; Coleman v. Beach, id. 545, S.^S ; 8* Hume V. Randall, 141 N. Y. 499 ; Simmons v. Taylor, 19 App. Div. Deegan v. Wade, 144 id. 573 577; Van 499; Matter of Fernbacher, 17 Abb. Home v. Campbell, 100 id. 287. And N. C. 339, 350; Swarthout v. Ranier, 506 Certain Powers, a Fee. If Powers not Executed, Remainders how Affected. In case such an absolute power of disposition is not executed,^^ and not involun- tarily subjected to the claims of creditors of the grantee of the power,^* original limitations, by way of remainder, take effect after the grantee's estate expires by efHuxion of time.®* , Life Tenant's Power to Dispose of, or Spend, Corpus. It is reasonably well settled in this State that a limitation over, after a devise or bequest in fee, where the primary taker has the absolute power of disposition is void.^ But if the jus disponendi of such first taker is partial or qualified, then the limitation over is within section 47 of this act and is not repugnant and not void,^^ even though the enjoyment in possession of the remainder may be defeated by such first taker's exercise of the power.*^ 143 N. Y. 499; Rose V. Hatch, 125 id. 34 Misc. Rep. 370; Kendall v. Case, 427; Brown v. Perry, 51 App. Div. 84 Hun, 124; Owens v. Owens, 64 11; Terry v. Wiggins, 47 N. Y. S12. App. Div. 212; Minges v. Mathew- 516; Dods worth v. Dane, 38 Misc. son, 66 id. 379; Matter of Babcock, Rep. 684; and see §§ 132, i33, The 37 Misc. Rep. 445; Matter of Par- Real Prop. Law. sons, 39 id. 126; Matter of Skinner, 87 Freeborn v. Wagner, 2 Abb. Ct. 81 App. Div. 449; Matter of Palmer, App. Dec. 175. 85 id. 117; and see p. 307, supra; cf. 88 § 139, The Real Prop. Law. Solley v. Westcott, 43 Misc. Rep. 188, 89 § 129, supra. 195- 90 Jackson v. Robins, 16 Johns. ^2 Swarthout v. Ranier, 143 N. Y. 557; Campbell v. Beaumont, 91 N. Y. 499; Van Axte v. Fisher, 117 id. 401; 464, 468 ; Van Home v. Campbell, Matter of Gardner, 140 id. 122 ; Wells 100 id. 287; Crozier v. Bray, 120 id. v. Seeley, 47 Hun, 109; Greyston v. at p. 373 ; Matter of Scherrer, 24 Clark, 41 id. 125 ; Douglass v. Hazen, Misc. Rep. 58, 60 ; Kelly v. Hogan, 8 App. Div. 25 ; Simmons v. Taylor, 71 App. Div. 343; Flanagan v. Flana- 10 id. 499; Schmeig v. Kochsberger, gan, 8 Abb. N. C. 413, 417 ; Terry 18 Misc. Rep. 617 ; Matter of Haskeel, V. Wiggins, 47 N. Y. 512; Wright v. 19 id. 206; Blauvelt v. Gallagher, 22 Miller, 8 id. at p. 25 ; Mersereau v. id. 564 ; Terry v. Wiggins, 47 N. Y. Camp, 42 Misc. Rep. 253. 512; Matter of Wendell, 37 Misc. Rep. 91 Rose V. Hatch, 125 N. Y. 427 ; 716 ; Flanagan v. Flanagan, 8 Abb. Matter of Cager, iii id. 343, 349; N. C. 413; Matter of Traver, 30 App. Crozier v. Bray, 120 id. 366, 375 ; Cole Div. 261, 265 ; Terry v. Rector, etc., V. Gourlay, 9 Hun, 453 ; Bell v. Warn, St. Stephen's Church, 79 id. 527 ; cf. 4 id. 406; Greyston v. Clark, 41 id. Solley v. Westcott, 43 Misc. Rep. 188, 125; Thomas v. Wolford, 49 id. 145; 195; and see Coleman v. Beach, 97 Simpson v. French, 6 Dem. 108; N. Y. at p. 553, as to inconsistent Matter of Westcott, 16 N. Y. St. provisions standing. Rep. 286, 289; Gross v. Mathewson, Certain Powers, a Fee. 507 The explanation of the above class of conditional devises and legacies is this: Formerly in this State, before the Revised Stat- utes, an executory devise, where the first taker had an absolute power of defeating the subsequent estate, was void.®^ Now under the Revised Statutes and this act an expectant estate in fee may be defeated in any manner the settlor shall designate and shall not on that account be declared void;^* but it is apprehended that such a provision must enter into the limitation itself or the expectant estate may still be void as wholly and irreconcilably repugnant.®^ 93 Jackson v. Bull, lo Johns. 19; Wright V. Miller, 8 N. Y. at p. 25; McDonald v. Walgrove, i Sandf..Ch. 274; 4 Kent, Comm. 270; Van Home V. Campbell, 100 N. Y. 287; Leggett V. Firth, 132 id. 7, 11; cf. Gray, Restraints on Alienation, 57-62; and dissenting opinion in Van Home v. Campbell, 100 N. Y. 310; Kelley v. Hogan, 71 App. Div. 343. 9* I R. S. 72s, §§ 32, 33, now § 47, The Real Prop. Law; Leggett v. Firth, 132 N. Y. 7, II; Greyston v. Clark, 41 Hun, 125 ; Bell v. Warn, 4 id. 406 ; dissenting opinion, Kelley V. Hogan, 71 App. Div. 343. 95 Vide supra, p. 308. 508 Certain Powers, a Fee. § 130. Certain powers create a fee Where a like power of disposition is given to a person to whom no particular estate is limited, such person also takes a fee, subject to any future estates that may be limited thereon, but abso- lute in respect to creditors, purchasers and encumbrancers. Formerly i Revised Statutes, 732, section 82: § 82. Where a like power of disposition shall be given to any person to whom no particular estate is limited, such person shall also take a fee, sub- ject to any future estates that may be limited thereon, but absolute, in respect to creditors and purchasers.** Comment on Section 130, Supra. An " absolute power of disposi- tion," within this section, is a general beneficial power to devise given to a tenant for life or years,^ or a general beneficial power to appoint by deed in the lifetime of the grantee of the power.®* Application of Section 130, Supra. This section provides for a case where the grantee of the absolute power of disposition takes no estate whatever in the lands subjected to the power. At com- mon law, such a power was a power simply collateral.®* The bene- ficial interest a man took under the execution of a power simply collateral, formed part of his estate at common law, and was sub- ject to his debts like other property. '^ But where a power simply collateral was a power in the nature of a trust, it was not, of course, a beneficial power at the common law. This distinction is pre- served in this section of The Real Property Law. Under this section a grant of an absolutely beneficial power carries a fee even where no estate is given to the grantee of the power.^ But a general beneficial power of appointment to be executed by will, given to a beneficiary of a trust fund, it seems, is not within this section, and the same rule applies where the trust is of lands.* Certain Limitations ovei Saved. This section does not, however, avoid the vesting of any original limitation over, to take efifect in ®s Repealed, chap. 547, Laws of 2 Kinnier v. Rogers, 42 N. Y. 531, 1896. S34; Taggart v. Murray, 53 id. 233, 8T § 132, The Real Prop. Law, et 238; Crooke v. County of Kings, 97 supra, p. 504. id. 421, 450. ®8 § 133, The Real Prop. Law, et 3 Cutting v. Cutting, 86 N. Y. 522 ; supra, p. 505. Hume v. Randall, 141 id. at p. 503; ^^ Supra, p. 462. Genet v. Hunt, 113 id. 158; Trask v. 1 I Sugd. Pow. 27. Sturgis, 31 Misc. Rep. 19s ; et vide supra, pp. 504, 505. , Certain Powers^ a Fee. 509 defeasance of the base fee which the statute has thus carried to the grantee of such a power, unless the rights of his creditors, pur- chasers and incumbrancers have supervened.* Whether such rights shall or shall not arise is always within the control of the grantee of an absolute and general power, or the power would not be absolute and general. Future estates, overridden by such a power, are thus made contingent upon the exercise of the power,^ but a limitation of such estates does not necessarily suspend the power of alienation unless the estates are limited to persons not in being.'' It must be obvious that no ulterior limitation, which may be defeated at the will of an owner of a prior estate in fee, can now be said to suspend the power of alienation.'^ Such a limitation resembles a limitation of a remainder after an estate in fee tail. At common law a remainder on a fee tail was not void, because it could always be barred.* Cutting V. Cutting. Under our present law the beneficiary of a trust takes no estate, legal or equitable.® But a general beneficial power to such beneficiary to devise the estate by his last will, if executed, does not carry the fee to him even as to his creditors.^" * Query, are not encumbrancers last revisers made a mistake in creditors? changing the language of this sec- s Freeborn v. Wagner, 2 Abb. Ct. tion, but the meaning is clear. App. Dec. I7S. 10 Cutting v. Cutting, 86 N. Y. 522; 6 Supra, pp. 24s, 257. Hume v. Randall, 141 id. 499 ; Genet ■? Supra, pp. 244, 24s. V. Hunt, 113 id. 158; Kelley v. Hogan, 8 Supra, p. 240. 71 App. Div. 343 ; supra, p. 504. 9 § 80, The Real Prop. Law. The 510 Certain Powers, a Fee. § 131. When grantee of power has absolute fee — Where such a power of disposition is given, and no remainder is Hmited on the estate of the grantee of the power, such grantee is entitled to an absolute fee.^^ Formerly i Revised Statutes, 733, section 83 : § 83. In all cases, where such power of disposition is given, and no remain- der is limited on the estate of the grantee of the power, such grantee shall be entitled to an absolute fee.12 Former Law. Prior to the Revised Statutes a simple devise or bequest " to the discretion " of another, who had no prior life interest, passed a fee.'^ But where a life interest, or a remainder, was limited, the devise was held to be a devise of a power, not of an interest.^* These were cases of informal disposition by wills, and many like cases arose, difficult of construction. The Revised Statutes. The Revised Statutes carefully defined the instances where the donation of a power passes a fee, and these instances this statute perpetuates.^^ Power Superadded to a Fee Merges. Sometimes a power of sale is superadded to a fee, usually by a person inops consilii}^ In such cases the power is merged in the fee, although in some cases a power may subsist with a fee." The Present Act. Section 129I* provides for a case where the grantee of the power has an estate in the lands. Section 130^® pro- vides for a case where the grantee of the power has no estate in the lands. This section^" furnishes a rule of construction of a limi- tation containing no special grant of an estate to the donee of such a power, and no grant of a remainder. In such a case an estate might result to the grantor of the power at common law.** 11 An absolute or general, beneficial ^^ Jennings v. Conboy, 73 N. Y. power within §§ 132, 133, The Real 230; Fay v. Taylor, 31 Misc. Rep. 32. Prop. Law. See supra; p. 503, et infra, i'' i Chance, Pow. 16 ; 2 id. 623 ; pp. Sio, Sii- Rankine v. Metzger, 69 App. Div. 264. 12 Repealed, chap. 547, Laws of ^^ Supra, The Real Prop. Law. i8p6, '^^ Supra, The Real Prop. Law. 13 Whiskon v. Cleyton, i Leon. 156. *" § 131, supra. w Harrington v. Harte, i Cox, 131 ; ^i Sir E. Clere's Case, Co. Litt. cf. Smith v. Floyd, 140 N, Y. 337. mb, 271b. is§§ 129 to 133, The Real Prop. Law. Certain Powers^ a Fee. 511 But, under the circumstances specified in this present section, no estate now results, but the mere gift of the power passes a fee to donee of the po.wer.^^ The absence of any limitation by way of remainder is thus now made conclusive evidence, that the donee of the power takes an interest, and not a mere power. The gift passes a fee not only as to creditors, purchasers and incumbrancers, but as to all the world.^ General Beneficial Power of Appointment. Under a general and beneficial power of appointment, the grantee may appoint to him- self or to any one else he pleases.^ Under such circumstances it is apparent that an absolute power of disposition ought to carry the estate in fee simple absolute, where no remainder is limited by the settlor. 22 Jennings v. Conboy, 73 N. Y. 230, 423, 427 ; cf. Swarthout v. Ranier, 143 237; Taggart v. Murray, S3 > Supra, p. 402. ''* 12 N. Y. at p. 404; Crooke v. Ti Belmont v. O'Brien, 12 N. Y. 394, County of Kings, 97 id. 421, 446. 404 ; Downing v. Marshall, 23 id. 366 ; ''■* Townshend v. Frommer, 125 N. Oilman v. Reddington, 24 id. 9, 15 ; Y. 446, 457, 468 ; De Peyster v. Qen- Townshend v. Frommer, 125 id. at dining, 8 Paige, 295, 303. p 459; Farmers' Loan & Trust Co. v. '^ Vide infra. Appendix II, notes of When a Trust Power is Imperative. 519 The Revised Statutes. Powers in the nature of trusts were, in equity, imperative, and, in the case of their non-execution, they de- volved on the court.''® The Revised Statutes gave emphatic expres- sion to this principle, and it is now embodied in this section of The Real Property Law. All trust powers not wholly discretionary, by express limitation, are now as imperative as active trusts." What Trusts Valid as Powers in Trust. What trust purposes are valid as powers in trust, the statute does not attempt to enumer- ate.''* But there are some general restrictions applicable to this character of trusts. No trust, operative as a power, may contra- vene any principle of public policy,''^ violate the principles of equity or good morals,^" create a perpetuity,*^ or authorize an act which the grantor of the power could not himself do.*^ Power in Trust, when Imperative. A power does not cease to be imperative because the grantee has the right to exclude certain persons, designated by the settlor as appointees,*^ unless the grantor may exclude, in his discretion, all the persons so designated as possible beneficiaries.** How far a power which is a quasi-trust original Revisers on the Article on Powers, and observations under §§ iii and 117, The Real Prop. Law, supra. ■^8 Harding v. Glyn, i Atk. 469; 2 Sugd. Pow. 160; 2 Chance, Pow. 555; Dominick v. Sayre, 3 Sandf . 555, 559 ; notes to 2 White & Tudor, Lead. Cas. in Eq. ; Meldon v. Devlin, 31 App. Div. 146, 157. "Allen V. De Witt, 3 N. Y. 276, 280; Downing v. Marshall, 23 id. at p. 380; Moncrief v. Ross, 5° id. 431, 436; Delaney v. McCormack, 88 id. 174; Coleman v. Beach, 97 id. 545; Matter of Gantert, 136 id. 106, no; Smith V. Floyd, 140 id. 337, 342; Farmers' Loan & Trust Co. v. Car- roll, 5 Barb, at p. 653; Towler v. Towler, 142 N. Y. 371 ; Dominick v. Sayre, 3 Sandf. 555; Van Boskerck V. Herrick, 65 Barb. 250; Hughes v. Mackin, 16 App. Div. 291, 295 ; Kemp V. Kemp, 36 Misc. Rep. 79. ''s Downing v. Marshall, 23 N. Y. at p. 380; Belmont v. O'Brien, 12 id. at p. 403; Read v. Williams, 125 id. at p. 569; Rochevot v. Rochevot, 74 App. Div. 585, 590. ™ Tilden v. Green, 130 N. Y. 29, 54; Belmont v. O'Brien, 12 id. at p. 403. 80 Read v. Williams, 125 N. Y. 560, 569; Sweeney v. Warren, 127 id. 426. *i Belmont v. O'Brien, 12 N. Y. 394^ 403; Everitt v. Everitt, 29 id. 39, 78; Booth v. Bap. Church, 126 id. at p. 239. *2 Booth V. Stuyvesant, 18 Wend, at p. 26s; Genet v. Hunt, 113 N. Y. 158, 170. *3 Delaney v. McCormack, 88 N. Y. 174, 182; Holland v. Alcock, 108 id. 312, 320; Power V. Cassidy, 79 id. 602, 613 ; Wilson v. Van Epps, 38 Misc. Rep. 486, 493. ^^ Supra, § 137, The Real Prop. Law; Tilden v. Green, 130 N. Y. 29, 54 ; Coleman v. Beach, 97 id. 545 ; Matter of Bierbaum, 40 Hun, 504, 506, 507; Austin V. Oakes, 117 N. Y. 577, S90. 520 When a Trust Power is Imperative. power may be outside of this principle, and not imperative, it is not always easy to discern.^ Execution of Imperative Trust Po-wer, how Enforced. When a trust power is imperative its execution will be enforced in equity, or by judgment of a court of proper jurisdiction.®® A trust created through the medium of a power in trust is as much the subject of equity cognizance as an express trust, where the legal title is in the trustee. But a court of equity has no inherent jurisdiction to con- strue a will, unless there is a trust of some kind.*^ Power in Trust does not Fail for Want of a Trustee. A trust power so far partakes of the nature of a trust as not to fail, for want of the designation of a trustee,** or even by reason of the death of the grantee of the power.*® But while a peremptory power of sale is a trust power and imperative, the beneficiaries may elect to take the lands and extinguish the power.*" Identity of the Trustee and Beneficiary. The identity of the sole trustee of a trust poiwer and a beneficiary ought not to operate to destroy the trust, although it may incapacitate the trustee from holding, for reasons before suggested under trusts.*^ Power in Trust, how Extinguished. The resemblance between ex- press trusts under the 76th section of this act and powers in trust is further exemplified by the general application of the doctrine, that when the trust purpose ceases the estate or power of the trus- tee ceases.*^ By the Revised Statutes this principle was expressly applied to powers.*^ While no such explicit cross-reference is con- *5 Towler v. Towler, 142 N. Y. 371, v. A. D. Farmer Tpye F. Co., 18 375- Misc. Rep. 434. *s Haight V. Brisbane, 96 N. Y. 132 ; 9i Supra, p. 371 ; Rankine v. Metz- Chapl. Ex. Trusts & Pow., § 583; ger, 69 App. Div. 264; Haendle v. cf. as to powers of sale, Mellen v. Stewart, 84 id. 280. Mellen, 139 N. Y. 210; Reade v. Con- 92 Manier v. PHelps, 15 Abb. N. C. tinental Trust Co., 28 Misc. Rep. 721, 123, 137; Bruner v. Meigs, 64 N. Y. 725. 506; Hetzel V. Barber, 69 id. i ; Pren- *^ Mellen v. Mellen, 139 N. Y. 210 ; tice v. Jansen, 79 id. 478, 486 ; Harvey Dell v. Wisner, 88 id. 153, 160; cf., v. Brisben, 50 Hun, 376, § 89, The § 1866, Code Civ. Pro. Real Prop. Law ; Cussack v. Tweedy, 88 Infra, § 141, The Real Prop. 126 N. Y. 87, 88 ; Sweeney v. Warren, Law. 127 id. 426; Hurrell v. Hurrell, 65 *9 § 162, The Real Prop. Law. App. Div. 527; cf. Lindo v. Murray, 90 Hetzel v. Barber, 69 N. Y. 11; 91 Hun, 335. Mellen v. Mellen, 139 id. 210; Smith "3 j R. s_ 730, § 67; id. 734, § 102. When a Trust Power is Imperative. 521 tained in this act,^* the general doctrine relating to the extinguish- ment of powers of this nature is sufficient in itself to continue the application of the principle stated in the article on trusts.^^ Powers of Sale, how Extinguished. A pt>wer of sale for the benefit of legatees may be extinguished by such legatees if all concur;^'' or by the failure, or the accomplishment, of the trust purpose.®^ But a mere naked power to executors need not fail because certain un- connected trusts contained in the same will prove void,^* as such a naked power is good even by implication.^^ A naked power of sale is not repugnant to a devise in fee.^ Power to Appoint, or Select, Uncertain Beneficiaries. A power of se- lecting certain beneficiaries is often annexed to legacies, and even devises for charity, and is a power in trust.^ At the present day an appointment under such a power to a charitable use may be pre- sumably indefinite or uncertain, and still be enforcible as a charity.* A trustee of a power of this kind may appoint to persons not in being at the time the power is created.* But a trustee of a power has no authority to appoint to persons outside of the power.' Certain Powers in Trust in the Nature of Remainders. A power in trust is, under certain circumstances, in the nature of a remainder.® ^ § 162, The Real Prop. Law. Crittenden v. Fairchild, 41 N. Y. 289 ; ^ § 89, The Real Prop. Law ; Cussack v. Tweedy, 126 id. 81, 87 ; Sweeney v. Warren, 127 N. Y. 426; Mellen v. Mellen, 139 id. 210, 219. Herriott v. Prime, 87 Hun, 95 ; 2 Power v. Cassidy, 79 N. Y. 602 ; Roberts v. Carey, 84 id. 328; and see Prichard v. Smith. 95 id. 76; Matter supra, p. 393, under § 77, The Real of O'Hara, id. 403 ; Holland v. Al- Prop. Law; Meldon V. Devlin, 31 App. cock, 108 id. 312; Tilden v. Green, Div. 146, 156; Trask v. Sturges, 170 130 id. 29; People v. Powers, 147 id. N. Y. 482. 104; Willets V. Willets, 20 Abb. N. C. ^ Supra, p. 390. 471 ; Livingston v. Gordon, 7 id. 53. 9T Herriott v. Prime, 155 N. Y. 5 ; * Chap. 701, Laws of 1893 ; et vide Sweeney v. Warren, 127 id. 426 ; Bene- supra, § 93, The Real Prop. Law ; cf, diet V. Webb, 98 id. 460, 467; Parish i Sugd. Pow. 254. v. Parish, 175 id. 181 ; Hurrell v. * Meldon v. Devlin, 20 Misc. Rep. Hurrell, 65 App. Div. 527. 56, 59, 3i App. Div. 146. 98Lindo v. Murray, 91 Hun, 34s; ' Austin v. Oakes, 113 N. Y. 577; McCready v. Metropolitan Life Ins. Townsend v. Townsend, 27 Misc. Rep. Co., 83 id. 526; aflfd., 148 N. Y. 761. 268. 99 Kinnier v. Rogers, 42 N. Y. 531 ; « And this, though not within the Strube v. Lentzbach, 12 Misc. Rep. letter of Lord Coke's definition, or 216; Cussack v. Tweedy, 126 N. Y. the definition of this act. Supra, § 28, 8i. The Real Prop. Law ; 2 Chance, Pow. 1 Tabor v. Willet, i App. Div. 285 ; 34. 522 When a Trust Power is Imperative. Thus, where an estate was settled on trusts for the hfe of " A.," with power to " A." to devise the inheritance to his issue, and if he had no issue then to the settlor's right heirs, and in default of such appointment remainder over, etc., etc., and " A." exercised the power, the limitation was held to be a remainder expectant on a life estate,'^ and this is a fortiori true now, since a power of this nature has become a power in trust,* and peremptory.'' Whether the constructive remainder is vested or contingent^" may depend on the frame of the power of appointment, e. g., to appoint the in- heritance " to any one or more " of his issue by, etc., etc." If the donee has power to exclude one child or descendant, the construc- tive remainder is certainly contingent, at least until the power is executed, and then it becomes vested, but subject to be divested by the execution of a subsequent will.'^ ^ 2 Chance, Pow. 33 ; Decker v. ^ Supra, § 137, The Real Prop. Law. High Street M. E. Church, 27 App. 10 Supra, § 30, The Real Prop. Law ; Div. 408; Kemp v. Kemp, 36 Misc. Meldon v. Devlin, 31 App. Div. p. 157. Rep. at p. 87. 11 Cf. Goebel v. Wolf, 113 N. Y. ® Smith V. Floyd, 140 N. Y. 337 ; 405. Gilman v. Reddington, 24 id. 9, 17, 18; 12 cf. Van Axte v. Fisher, 117 N. Meldon v. Devlin, 31 App. Div. 146, Y. at p. 403; Sayles v. Best, 140 id. IS7 ; Townsend v. Townsend, 27 Misc. 368. Rep. 268; Austin v. Oakes, 117 N. Y. 577- Powers to Appoint to a " Class," Regulated. 523 § 138. Distribution when more than one beneficiary Where a disposition under a power is directed to be made to, among, or between, two or more persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to an equal prcn portion; but when the terms of the power import that the estate or fund is to be distributed among the persons so designated, in such manner or proportions as the grantee of the power thinks proper, the grantee may allot the whole to any one or more of such persons in exclusion of the others. Formerly i Revised Statutes, 734, sections 98, 99: § 98. Where a disposition under a power is directed to be made to, or among or between several persons, without any specification of the share or sum to be allotted to each, all the persons designated, shall be entitled to an equal proportion.!* § 99. But when the terms of the power import that the estate or fund is to be distributed between the persons so designated, in such manner or proportions as the trustee of the power may think proper, the trustee may allot the whole to any one or more of such persons, in exclusion of the other.i* Illusory Appointments. At common law a donee of a power to appoint to a class in such shares as he chose, might make purely illusory or nominal appointments among some of the appointees, reserving the substantial balance for any -other of the class. ^^ But in equity it was at first held that each of the class was entitled to a " substantial " share, and not an " illusory " one. This uncertain judicial rule only led to protracted litigations, and finally illusory or nominal appointments were upheld in equity.^® In 1830 the common law was altered by statute in England,^^ so as to require the settlor to specify the amount of the shares designed, and other- wise leaving it to the discretion of the donee of the power, pro- vided he gave something, however small, to each of the appointees. The most trifling amount would satisfy the statute.^® 13 Repealed, chap. 547, Laws of phrey. Real Prop. (2d ed.) 105 ; Re- 1896. visers' note to R. S. on Powers, Ap- 1* Repealed, chap. 547, Laws of pendix II. 1896. • 17 II Geo. IV, and i Will. IV, chap. 15 Appendix, 2 Sugd. Pow. 363. 46. 16 Farw. Pow. (ist ed.) 302; Hum- is Farw. Pow. 304. 524 Powers to Appoint to a " Class," Regulated. The Revised Statutes. The original revisers of the statutes of New York took up this branch of the law at a time when its reform was greatly mooted, but before the passage of " Sugden's Act " in England. It will be seen that they solved the difficulty in New York much in the same way that it was solved in England.^^ Un- less the settlor expressly left it to the donee of the power to deter- mine the amount of a share, the Revised Statutes required equality of division.^" Appointment to a Class. The basis of the execution of all powers of selection or appointment to a class is now equality, unless the settlor leave the amount or share to the absolute discretion of the grantee of the power.^^ In construing such a power the presump- tion is in favor of equality; and a limitation, to the donee of the power of a discretion as to shares or amounts, must be clear.^^ Where a power is given by devise to a donee to appoint property to " all, any or either ' of several persons named, or to all, any or either of their lawful issue, the word '' or," in the absence of any indication of a contrary intent, has a discretionary, not a substitu- tional import,^ and the word " issue " includes grandchildren as well as children.^* 19 I R. S. 734. i§ 98, 99. now § 138, 660; Shannon v. Pickell, 2 N. Y. St. The Real Prop. Law. Rep. 160; Re-extension of Church 20 See notes of Revisers of the Street, 49 Barb. 555 ; Stuyvesant v. Revised Statutes on the originals of Neil, 67 How. Pr. 16; Stewart v. this section of the Real Prop. Law, Keating, 15 Misc. Rep. 44; cf. The and § 140, The Real Prop. Law. Real Prop. Law, § 140. 21 The Real Prop. Law, § 140; Con- 23 Drake v. Drake, 134 N. Y. 220; ner v. Watson, 1 App. Div. 54; Austin Meldon v. Devlin, 31 App. Div. at p. V. Oakes, 117 N. Y. S77. 59o; Meldon 157; 2 White & Tudor, Lead. Cas. in V. Devlin, 31 App. Div. 146, 157. Eq. 1077. 22 Matter of Conner, 6 App. Div. 24 Drake v. Drake, 134 N. Y. 220. 594; Jones V. Jones, 8 Misc. Rep. Beneficial Power Subject to Creditors. 525 § 139. Beneficial power subject to creditors. — A special and beneficial power is liable to the claims of creditors in the same manner as other interests that cannot be reached by execution; and the execution of the power may be adjudged for the benefit of the creditors entitled. Formerly I Revised Statutes, 734, section 93: § 93. Every special and beneficial power is liable, in equity, to the claims of creditors, in the same manner as other interests that cannot be reached by an execution at law, and the execution of the power may be decreed for the benefit of the creditors entitled.25 Comment on Section 139, Supra. The beneficial interest a man took under the execution of a power formed a part of his estate before the Revised Statutes.^^ But the creditor's remedy was not clear.^^ The Revised Statutes declared that certain beneficial powers were estates in fee.^^ Where a conversion of a power into a fee now takes place by operation of the statute, this section is not relevant, as the creditor's remedy is plainly against the legal estate by execu- tion. But where such a conversion does not take place, and the power is special, beneficial and vested, the creditors of the grantee of such power may then resort to this section, and have the delin- quent judgment debtor decreed to execute the power for the benefit of creditors.^ Married Women. A married woman, since the Married Women's Acts,^" stands in the same position in respect of a beneficial power under this section as a feme sole. Prior to those acts her restricted power over her separate estate, by the common law, placed her in a peculiar juristic status, and while equity was more liberal than the legal tribunals in affording relief to her creditors, the chancellor could not compel a wife to execute a beneficial power, except under some circumstances.'^ 25 Repealed, chap. 547, Laws of 536 ; Kinnan v. Guernsey, 64 How. 1896. Pr. 253, 259; cf. Harvey v. Brisbin, 262 Sugd. Pow. 27; Cutting v. Cut- 143 N. Y. 151. ting, 86 N. Y. 522. so Supra, p. 490, note 57. 27 2 Sugd. Pow. 158. 31 Cf. L'Amoureux v. Van Rensse- 28 1 R. S. 732, §§ 81, 82, 83, 84, 85, laer, i Barb. Ch. 34, 37 ; Rogers v. now §§ 129, 130, 131, 132, 133, The Ludlow, 3 Sandf. Ch. 104, 109; Mar- Real Prop. Law. vin v. Smith, 56 Barb. 600, 608; s. c, 29 Cutting V. Cutting, 86 N. Y. 522, 46 N. Y. S7i. 526 Execution of Power on Death of Trustee. § 140. Execution of power on death of trustee. — If the trustee of a power, with the right of selection, dies leaving the power unexecuted, its execution must be adjudged for the benefit, equally, of all the persons designated as benefici- aries of the trust. Formerly i Revised Statutes, 734, section 100: § 100. If the trustee of a power, with the right of selection, shall die, leaving the power unexecuted, its execution shall be decreed in equity for the benefit equally of all the persons designated, as objects of the trust.^ Comment on Section 140. Before the Revised Statutes it was said that if the donee of a power was a trustee, and the court acquired jurisdiction of the power, it always decreed an equal distribution, for, although the trustee of the power might exclude some of the appointees, the court could not.** The design of the original re- visers was to abrogate the law sanctioning illusory appointments, and to effect equality of appointments as far as possible.** The de- volution of a trust power was, therefore, expressly made to con- form to the devolution of estates held by trustees. That a power in the nature of a trust vested in the chancellor upon the death of a trustee, even before the Revised Statutes, was the opinion of one of the revisers.*^ The statute made this point clear in every event,*® and, in addition, expressly directed equality of selection and ap- pointment, without regard to the terms of the original limitation, if the trustee of the power die before its execution.*'' This was, however, Sugden's conception of the pre-existing law. Obviously in his opinion the maxim " equality is equity " was to be applied, independently of statute, in all cases where a power devolved on a court of equity.*^ 32 Repealed, chap. 547, Laws of ^7 Dominick v. Sayre, 3 Sandf. 555 ; 1896. Leggett V. Hunter, 19 N. Y. at p. 33 Sed cf. 2 Chance, Pow. 561, criti- 459 ; Delaney v. McCormack, 88 id. cisjng Sugden to this effect. 174, 182; Greenland v. Waddell, 116 3* Vide supra, p. 523, § 138. id. 234, 242 ; Smith v. Floyd, 140 id. 35Dominick v. Sayre, 3 Sandf. at p. 337; Meldon v. Devlin, 31 App. Div. 559. 46, 157 ; Wilson v. Van Epps, 38 Misc. 36 The Real Prop. Law, §§ 91, 162 ; Rep. 486, 492. Hoey v. Kenny, 25 Barb. 396. ** Quoted in 2 Chance, Pow. 561, and criticised. When Power Devolves on Court. 527 § 141. When power devolves on court. — Where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be executed, its exe- cution devolves on the supreme court. Formerly i Revised Statutes, 734, section loi : § loi. Where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be exercised, its execution shall devolve on the court of chancery.^ Comment. This section furnishes another analogy between trusts, and powers in trust, under this statute. The section is really a rule of construction in cases where a limitation of a power is defective. The cy pres doctrine in relation to powers does not prevail in this State,*" unless the power is to appoint to charity,*^ yet the grant of a power may now arise by implication;*^ and where the person by whom the power is to be executed is impliedly designed, the courts will not interfere.** But the trust purpose, under this section, must be one enforcible as a power** before the court can act.*^ If no trustee of a power is named by the settlor the court ap- points its agent.*^ Where the beneficiary and the sole trustee are the same person it is presumed that the court will appoint a trustee in order to save the trust.*'' Read v. Williams. The case of Read v. Williams, cited in the notes to this page,** was, however, a charity case decided before the recent amendments to the law of Charitable Uses in this State.*® But the principle stated in our text, that only valid trust powers, and not invalid trust powers, can fall under this section of The Real Prop- erty Law, must be too obvious to require any citation of authority whatever. Only those powers which are recognized as valid in law or equity can devolve by operation of law on the death of the grantee of the power; for devolution of title by operation of law is always sub modo. 39 Repealed, chap. 547, Laws of 512; c/. Crocheron v. Jacques, 3 Edw. 1896. Ch. 207. *OHillen v. Iselin, 144 N. Y. 365, **Vide supra, under §§ 117, 137, 374; Holland v. Alcock. 108 id. 312, The Real Prop. Law. 330; Cottman v. Grace, 112 id. 299, 306. « Read v. Williams, 125 N. Y. at p. *i Vide supra, under § 93, The Real 569. Prop. Law. *6 Kirk v. Kirk, 137 N. Y. 510; *2Bogert V. Hertell, 4 Hill, 492; Myers v. McCullagh, 63 App. Div. Borland v. Borland, 2 Barb. 63; 321, 327. Meakings v. Cromwell, S N. Y. 136, ■^'' Supra, pp. 371, 372. 139; Holland v. Alcock, 108 id. 312; « Read v. Williams, 125 N. Y 560 s. c, 20 Abb. N. C. 447, 453- *»§ 93, The Real Prop Law; chap! *3 Meakmgs v. Cromwell, 2 Sandf. 701, Laws of 1893. 528 When Creditors May Compel Execution. § 142. When creditors may compel execution of trust power. — The execution, wholly or partly, of a trust power may be adjudged for the benefit of the creditors or assignees of a person entitled as a beneficiary of the trust, to compel its execution, where his interest is assignable. Formerly i Revised Statutes, 73s, section 103 : § 103. The execution in whole or in part, of any trust power, may be •decreed in equity, for the benefit of the creditors or assignees of any person entitled as one of the objects of the trust, to compel its execution, when the interest of the objects of such trust is assignable-^" Construction of Section 142, Supra. This section places the credit- ors of the beneficiary of a trust power in the shoes of the benefici- ary, when the interest of such beneficiary is a sum in gross or assignable.®^ Before the Revised Statutes powers in trust were im- perative®^ and might be enforced in equity for the benefit of all entitled persons " indiscriminately."^^ But no trusts other than •charitable uses are enforcible in this State, unless the trust purpose is one recognized as equitable, and there is a definite beneficiary entitled to enforce the trust.®* If a debtor is not entitled to the benefit of an execution of a power, it is very clear that this section confers no greater right on his creditors.®® So the creditor's claim must be one established by law, and not one in contention, in order to fall imder this section.®^ Creditors Aided when Execution Defective. If an execution of a trust power is defective it is clear that creditors, under this section, have a right to the aid of a court of equity, although the following sec- tion of this act®^ might, from its present juxtaposition, appear to •exclude them. ®o Repealed, chap. 547, Laws of 569 ; cf. § 93, The Real Prop. Law, 1896. supra. ®i § 83, The Real Prop. Law ; Mat- 55 ciark v. Cregc, 47 Barb. 599, ter of Gantert, 136 N. Y. 106. 614; Marvin v. Smith, 56 id. 600, 52 2 Chance, Pow. SSS. 606 ; Cutting v. Cutting, 20 Hun, 260, 53 2 Chance, Pow. 557, citing But- 369. ler's note to Co. Litt. 290b. 56 Marvin v. Smith, 56 Barb, at p. 5* Read v. Williams, 125 N. Y. 560, 607; Harvey v. Brisbin, 143 N. Y. 151. ®T § 143, The Real Prop. Law. Defective Execution of Trust Power Aided. 529 § 143. Defective execution of trust power — Where the execu- tion of a power in trust is defective, wholly or partly, under the provisions of this article, its proper execution may be adjudged in favor of the person designated as the bene- ficiary of the trust. Formerly i Revised Statutes, 737, section 131 : § 131. Where the execution of a power in trust shall be defective, in whole or in part, under the provisions of this Article, its proper execution may be decreed, in equity, in favor of the persons designated as the objects of the trust.58 Defective Execution of Powers. At law, defective executions of powers were nugatory. In equity the case was different as to cer- tain persons, and relief was given in favor of general classes of per- sons: (i) Purchasers ;^^ (2) creditors;^ (3) wife;^^ (4) legitimate children ;^^ (5) charity."^ The original revisers of the statutes can- not have contemplated limiting the classes of persons entitled to resort to equity for aid of a defective execution.®* Nor at the time the Revised Statutes was enacted could the Legislature thus have detracted from the equitable jurisdiction of the chancellor who was a constitutional officer. It is rather to be presumed that this sec- tion will receive a wider construction so as to aid all, of whatever class, who have any valid interest in the enforcement of the trust power.^ Void or Defective Execution. The distinction between a void and a defective execution of powers is not changed by this section.®^ Defective Execution Aided. Where the power is not a trust power> the ordinary equitable rules relating to defective executions con- tinue to apply, as the equitable jurisdiction remains unaffected by statutory or constitutional changes. Power of Revocation. What constitutes an execution of a power of revocation is specified in a subsequent section of this act.*"^ 58 Repealed, chap. 547, Laws of es cf. § 137, The Real Prop. Law; 1896. Matter of Gantert, 136 N. Y. 106; 59 2 Chance, Row. 494; 2 Sugd. Marvin v. Smith, 56 Barb. 600, 606; Pow. 93; Schenck v. EUingwood, 3 Bostwick v. Beach, 103 N. Y. 414, Edw. Ch. 175. 421; and see § 160, The Real Prop. 80 2 Chance, Pow. 494. Law, as to purchasers. «i 2 Sugd. Pow. 93. 66 Austin v. Oakes, 48 Hun, 492 ; 6^2 Sugd. Pow. 94. s. c, 117 N. Y. 577; Hillen v. Iselin, 83 2 Chance, Pow. 497. 144 id. at p. 365; cf. Farw. Pow. (ist ^*Cf. §§ 137, 160, The Real Prop, ed.) 262^^9. Law. . 67 § 231, The Real Prop. Law. 34 530 Effect of Insolvent Assignment. § 144. Effect of insolvent assignment A beneficial power, and the interest of every person entitled to compel the execution of a trust power, shall pass, respectively, to a trustee or committee of the estate of the person in whom the power or interest is vested, or an assignee for the benefit of creditors. Formerly i Revised Statutes, 735, section 104: § 104. Every beneficial power, and the interest of every person entitled to compel the execution of a trust power, shall pass to the assignees of the estate and effects of the person in whom such power or interest is vested, under any assignment authorized by the provisions of the fifth Chapter of this Act.«8 English Acts. The early Bankrupt Acts of England^* provided for the devolution or execution of certain powers in favor of credit- ors of the donee of the power.™ The Revised Statutes. The Revised Statutes adopted the same general principles,^^ with modifications as to the assignment of cer- tain contingent interests not vesting in possession or interest within three years. '^ Committee of Lunatics. Committees of persons adjudged incapable of administering their own afifairs fall under this section of The Real Property Law, and are entitled to execute a beneficial power vested in the insane or incompetent grantee of the power. As a beneficial power is property of the grantee as much as any visible or tangible thing can be, it is obvious that this section of this act must be liberally construed, even as against persons entitled by way of contingent remainder to the subject-matter of the power. *8 R. S., pt. 2, chap. 5, relating to ^0 i Sugd. Pow. 224. assignments of estate; repealed, chap. ''i Clark v. Crego, 47 Barb. 599, 614; 24s, Laws of 1880; I R. S. 735, § 104; Marvin v. Smith, 56 id. 600, 606; s. c, repealed, chap. 547, Laws of 1896. 46 N. Y. 571. 69 13 Eliz., chap. 7 ; 21 Jac. I, ehap. '^2 Cutting v. Cutting, 86 N. Y. at p. 19. 543; s. c. below, 20 Hun, 360, 369. How Power Must be Executed. 531 § 145. How power must be executed — A power can be exe- cuted only by a written instrument, which would be suf- ficient to pass the estate, or interest, intended to pass under the power, if the person executing the power were the actual owner.'^^ Formerly i Revised Statutes, 73s, section 1 13 : § 113. No power can be executed except by some instrument in writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the actual owner.'f* Intent of Section 145, Supra. Prior to the Revised Statutes, where the instrument creating the power required certain formalities to be observed in executing it, the donee of the power must have strictly observed them,^^ although in the absence of such a direc- tion the most informal execution of a power answered.''^ The for- mer involved rules relating to the execution of powers'^^ were in- tended to be reduced by the Revised Statutes to a few simple prin- ciples. An execution of powers by informal instruments was in- tended to be done away with, and the instruments in execution of powers were reduced to two, a deed^* and a will.'^^ To these Mr. Chaplin, in his work on Powers, adds a third instrument, a con- tract.*" But a contract in this sense where it is sufficient to comply with the present Statutes of Frauds and Uses, is a conveyance or deed ; and it is apprehended that a merely executory contract is not an execution of the power.*^ Since the abolition of seals to con- veyances, it is apparent that the written instrument in execution of a power need no longer be a deed. The Revised Statutes. In the Revised Statutes the foregoing sec- tion was supplemented by i Revised Statutes, 736, section 114: T3 Vide 2 R. S. 134, § 6, now § 207, 79 §§ 147^ 148, 207, The Real Prop. The Real Prop. Law. Law; Matter of Gardner, 140 N. Y. ■^^ Repealed, chap. 547, Laws of 122. 1896. 80 § 62s, Ex. Trust & Pow., citing ■^5 Strahan, Prop. 171. Bostwick v. Beach, 103 N. Y. 414, ''^In re Broad Smith v. Draeger, 2 421; cf. Whitlock v. Washburn, 62 Ch. 86, and note of original revisers Hun, 369; Demarest v. Ray, 29 Barb, on article on Powers, Appendix II, 563. infra. 8I Bostwick v. Beach, 103 N. Y. at "Chap. 6, Sugd. Pow.; Chap. 9, p. 421; Whitlock v. Washburn, 62 Chance, Pow. Hun, 369; Demarest v. Ray, 29 Barb. ''S Supra, §§ 14s, 207, The Real Prop. 563. Law; Barber v. Cary, 11 N. Y. 397, 532 How Power Must be Executed. " Every instrument, except a will, in execution of a power, and, although the power may be a power of revocation only, shall be deemed a conveyance within the meaning and subject to the pro- visions of the third chapter of this act." ^^ The latter section is not re-enacted in the article on Powers of The Real Property Law, but purports to be contained in article VIII of this act,®^ so that a mere power of revocation may be recorded, although strictly it is not a deed of conveyance. Construction of Section 145, Supra. This section of The Real Prop- erty Law strictly refers to deeds or instruments of conveyance inter vivos and not to wills in execution of powers. If a power is to be executed by deed it must be executed by an instrument good as a conveyance under the law of New York.^* Married Women. Formerly a married woman, executing a power by deed, must be separately examined in order to execute the power well by deed.*^ But this is no longer necessary.^^ Power — How Executed. Where the power is directed to be " exe- cuted by writing," either a deed or will is a good execution.*'' Execution of Power of Revocation. A subsequent section of this act should be read in connection with any investigation of the defective execution of powers.** *2 The chapter relating to the Proof ^ Jackson v. Edwards, 22 Wend, and Recording of Conveyances of 508; i R. S. 736, § 117. Real Estate. *® Chap. 249, Laws of 1879 ; as *3 § 240, The Real Prop. Law. amended, chap. 300, Laws of 1880. ** Barber v. Gary, 11 N. Y. 397, *'f i Sugd. Pow. 262; In Matter of 398; Jackson v. Edwards, 22 Wend. Gardner, 140 N. Y. 122. at p. 508; see § 148, The Real Prop. **§ 231, The Real Prop. Law. Law; Coleman v. Beach, 97 N. Y. S4S, SS6. Execution by Survivors. 533 § 146. Execution by survivors — Where a power is vested in two or more persons, all must unite in its execution; but if before its execution, one or more of such persons die.^, the power may be executed by the survivor or survivors. Formerly i Revised Statutes, 735, section 112: § 112. Where a power is vested in several persons, all must unite in its execution ; but if previous to such execution, one or more of such persons shall die, the power may be executed by the survivor or survivors.*^ Former Law Re-enacted. At common law, if a naked power was vested in two, or more,^ nominative, without any reference to an office liable to survive as an executorship is, it, without doubt, would be a contradiction of the general rule, to allow the power to survive.®^ By Statute in England (21 Hen. VIII, chap. 4), a part of executors were allowed to execute a power created by will, when others refused to accept the charge. This statute was re-enacted in New York,®^ and in the Revised Statutes,^^ as set out above. Construction of Section 146, Supra. This section of the present act does not, however, authorize the execution of a power by some of the donees of a power, except in the event it specifies — the death of one or more before execution.®* Thus, if all the executors qualify all must execute a power of sale given nominatim to execu- tors,®^ and it is even said that, if one of the grantees of a power resign, the court must supply the vacancy in order to make a good execution of a power.®® 89 Repealed, chap. 547, Laws of Ogden v. Smith, 2 Paige, 175'; Niles 1896. V. Stevens, 4 Den. 399. 90 But where power was to three, or 9* Herriott v. Prime, 87 Hun, 95 ; any of them, a sale by two held good, affd., 155 N. Y. 5; Brown v. Doherty, Townesend v. Walley, Moore, 341. 93 App. Div. 190. 91 Note, Co. Litt. 1 13a, cited in Sin- 95 in the Matter of Van Wyck, i clair V. Jackson, 8 Cow. 543, 554; i Barb. Ch. 565; Berger v. Duff, 4 Sugd. Pow. 143 ; Taylor v. Morris, i Johns. Ch. 368 ; Wilder v. Ranney, 95 N. Y. 341, 358; Osgood V. Franklin, 2 N. Y. 7, et vide infra, under this Johns. Ch. I, 19; Niles v. Stevens, 4 section. Den. 399 ; Roseboom v. Mosher, 2 id. 96 jj, tjje Matter of Van Wyck, i 62. Barb. Ch. 565; sed cf. § 637. Chapl. 92 2 J. & V. 96 ; 2 R. L. 366. Express Trusts & Pow. and cases 93 I R. S. 735, § 112; 2 id. 109, § ss; cited. 534 Execution by Survivors. Power of Sale. How far a power of sale is personal, or how far in trust, is often the question in cases where a grantee of a power dies before execution."'^ Power of Sale Executed by One of Two Executors. A power of sale executed by one of two acting executors is void.^^ Where Executors of a Power Refuse to Qualify. Where certain of the designated executors refuse to qualify, a testamentary power may now be executed by those who do qualify,®® although before the Revised Statutes the rule was otherwise, unless the power was coupled with an interest or was in trust. ^ But at present all who so qualify must, under this section, unite in the execution of the power, unless, in the grant of the power, it is otherwise expressly provided.^ Power in Trust, how to be Framed. In framing a grant or limitation of a power in trust, it is desirable to provide (i) for the refusal of any of the grantees to accept the trtist, and (2) for their several deaths or removal, and (3) for the resignation of any of them, al- though in the case of powers to executors or testamentary trustees the statute may provide for several of such contingencies. This section of the act applies to both a settlement inter vivos and one by will. 8T Niles V. Stevens, 4 Den. 399, 404 ; 358 ; Bunner v. Storm, i Sandf. Ch. Mott V. Ackerman, 92 N. Y. s.39. .'i.'iz; 3S8; Sharp v. Pratt, 15 Wend. 610; Greenland v. Waddell, 116 id. 234, Dominick v. Michael, 4 Sandf. 374; 240; Boyce v. Adams, 123 id. 402; cf. Meakings v. Cromwell, 2 id. 512; Gilchrist v. Rea, 9 Paige, 72 ; Domi- affd., 5 N. Y. 136 ; Leggett v. Hunter, nick V. Michael, 4 Sandf. 374; Conk- 19 id. 445, 455. lin V. Egerton, 21 Wend. 430; Scott ^ Franklin v. Osgood, 14 Johns. V. Douglas, 39 Misc. Rep. 555, et 527 ; s. c, 2 Johns. Ch. i ; Niles v. supra, pp. 393, 405, 447- Stevens, 4 Den. 399. 98 Brown v. Doherty, 93 App. Div. ^ Berger v. Duff, 4 Johns. Ch. 368 ; 190 ; supra, pp. 447, 533- Wilder v. Ranney, 95 N. Y. 7 ; Flem- ^ Code Civ. Proc., § 2642 ; 2 R. S. ing v. Burnham, 100 id. i ; cf. Whit- 109, § 55 ; Ogden v. Smith, 2 Paige, lock v. Washburn, 62 Hun, 369, 372. 197; Taylor v. Morris, i N. Y. 341, Execution of Powers to Devise. 535 § J 47. Execution of power to dispose by devise Where a power to dispose of real property is confined to a disposi- tion by devise or will, the instrument must be a wi'itten will, executed as required by law. Formerly i Revised Statutes, 736, section 115: § 115. Where a power to dispose of lands is confined to a disposition by ■devise or will, the instrument of execution must be a will duly executed, according to the provisions of the sixth Chapter of this Act.3 Comment on Section 147, Supra. By the old law, if a will is required a power may not be executed by deed.* This statute has not, in this respect, changed the former law of powers. But it has put an end to informal testamentary executions. Under the above section of this act a will in execution of a power must comply with the statute relating to wills,® if the power is executed in this State or relates to real estate situate here.® If executed in another State the maxim " locus regit actum " may also apply.'' How far Prior Will an Execution. How far a prior will may now be regarded as an execution of a power subsequently granted, query.* Farwell, in his treatise on Powers, is of the opinion that at common law a general power of appointment may be well executed by a will executed previously to the creation of the power.^ Mr. Chaplin is of the opinion that whether this be so in New York, depends on the construction of the New York Statute of Wills. ^"^ It would seem that unless our Statute of Wills is very clearly against the former rule, the common law should prevail. ^^ How far Prior Deed an Execution. A prior deed may be an execu- tion of a power of revocation in certain instances.'^ 3 2 R. S. 56 seq. (Chap. VI); i id. 561; White v. Howard, 46 id. 144, 736, § IIS, repealed, chap. 547, JLaws 159. of 1896. 7 Betts v. Betts, 4 Abb. N. C. 317, * I Sugd. Povv. 2SS, 256. Any in- 389 ; cf. Ward v. Stanard. 82 App. strument of a testamentary character Div. 386, 395. was, however, a good execution. Id. sChapl. Ex. Trusts & Pow., § 653; 260. cf. Lynes v. Townsend, 33 N. Y. at p. 5 Amer. Home Miss. v. Wadhams, 561. 10 Barb. 597; cf. Coleman v. Beach, ^Farw. Pow. (2d ed.) 222. 97 N. Y. 545. 1* Chapl. Ex. Trusts & Pow., § 653. 6 Lynes v. Townsend, 33 N. Y. 558, ^^ Supra, p. 465. 12 § 231, The Real Prop. Law. 536 Execution of Powers to, Convey. § 1 48. Execution of power to dispose by grant. — Where a power is confined to a disposition by grant, it cannot be executed by will, although the disposition is not intended to take effect until after the death of the person executing the jjower. Formerly i Revised Statutes, 736, section 116: § 116. Where a power is confined to a disposition by grant, it cannot be executed by will, although the disposition is not intended to take effect until after the death of the party executing the power.i^ Comment on Section 148, Supra. A power to be executed by deed could not at common law be executed by will.^* It must have been executed by an instrument under seal at least.^^ At the present day the deed or " grant " required by this section cannot be of a testa- mentary character ,^^ but must respond to the requirements of the article on Conveyances and Mortgages.^^ But if a limitation of a power is general, without being confined to a deed or will, it may be executed by either.^* In the Matter of Gardner, the Court of Appeals distinctly reiterate the last rule and say : " A general power to dispose of property includes the right to dispose of it by will, unless the grant of the power contains words which expressly or by fair implication exclude such a method of disposition."^* But where the power is limited to be executed by deed alone, it cannot be well executed by a testamentary disposition, even though the estate is not to take effect until after the death of the party executing the power. ^^ Execution of Power of Revocation. A prior deed may operate as an estoppel against the grantee of a power in some instances.^^ 13 Repealed, chap. 547, Laws of i'' Infra, art. VII, The Real Prop. 1896. Law. w I Sugd. Pow. 255. 18 Matter of Gardner, 140 N. Y. 122. 15 Id. 280. IS Matter of Gardner, 140 N. Y. 122. 18 Coleman v. Beach, 97 N. Y. 545, 20 Coleman v. Beach, 97 N. Y. at 556. p. SS6. 21 § 231, The Real Prop. Law." Insufficient Directions Aided. 537 § 149. When direction by grantor does not render power void. — Where the grantor of a power has directed or authorized it to be executed by an instrument not sufficient in law to pass the estate, the power is not void, but its execution is to be governed by the provisions of this article. Formerly i Revised Statutes, 736, section 118: § 118. Where the grantor of a power shall have directed or authorized it to be executed by an instrument not sufficient in law to pass the estate, the power shall not be void, but its execution shall be governed by the rules before prescribed in this Article.22 Comment on Section 149, Supra. As a general principle at common law a power could not be validly executed, except by such instru- ments as were specified by the donor in the limitation of the power.^^ But equity would often supplement a defective execu- tion.^ The Revised Statutes aided, in the original of this section, not a defective execution, but an insufficient grant, of a power ; for a direction to do something in a manner it is not permitted to be done by law, may be regarded as an insufficient direction, if not an illegal direction, because it is one contrary to law. This section presumes that the grantor intended the power to be executed by a sufficient, not an insufficient, instrument. It provides for a case not provided for by the common law. The section applies to all grants of powers whether contained in deeds or wills. Application of this Section. If the grantor of a power direct the grantee of the power to execute it by a will, to be witnessed by one person only, clearly by the law of New York, the will would not be sufficient to pass the estate. In such a case this section applies, and if the grantee of the power execute it by a will witnessed in conformity with the Statute of Wills by more than one witness the power is under this section well executed, although executed in a mode contrary to that directed by the grantor of the power and bad at common law.^ 22 Repealed, chap. 547, Laws of ^4 Supra, p. 529. 1896. 28 I Sugd. Pow. 251, 252, 253 ; cf. 23Farw. Pow. 262; i Sugd. Pow. i 151, The Real Prop. Law. 250; I Chance, Pow. 310. 538 Superfluous Directions Nullified. § 150. When directions by grantor need not be followed, — Where the grantor of a power has directed any formality to be observed in its execution, in addition to those which would be sufficient by law to pass the estate, the observ- ance of such additional formality is not necessary to the valid execution of the power. Formerly i Revised Statutes, 736, section 119: § 119. When the grantor shall have directed any formalities to be observed in the execution of the power, in addition to those which would be sufficient by law to pass the estate, the observance of such additional formalities shall not be necessary to a valid execution of the power.** Comment on Section 150, Supra. This section refers to " accumula- tive " or redundant " ceremonies," i. e., those which the grantor of the power prescribes as additional to the requirements of the law for an act of like nature. At common law, " accumulative " ceremonies directed by donor must be observed in the execution of a power. Thus, where the donor directed the power to be exe- cuted by a will " duly delivered," a delivery of the will to some persons present was held sufKcient.^'^ The present section does not prohibit a limitation containing superfluous, or accumulative, cere- monies, but it renders the superfluous ceremonies themselves un- necessary. Thus, a direction by a grantor of a power that a deed, to be executed under the power, shall be attested by two witnesses, is now equivalent to a direction that it shall be attested by one wit- ness, as the law requires only one witness to a deed af conveyance.^* Construction of Section 150, Supra. This section is equivalent to a command to grantors to omit a direction for all unnecessary cere- monies in a grant of a power. But the consent of a third person to the execution of a power is not a ceremony.^ Power of Sale. A power of sale directed to be performed in a designated place and in a designated mode is not, however, exe- cuted by following a statute regulating certain sales, and treating the directions of the grantor of the power as superfluous, under this section.^" 26 Repea:led, chap. S47, Laws of Ch. 175 ; Kissam v. Dierkes, 49 N. Y. 1896. 602, 604. 2T Doe V. HoUoway, i Starkie, 431. » The Real Prop. Law, S 153 ; Kis- Revisers' notes to article on Powers, sam v. Dierkes, 49 N. Y. 602; Stokes Appendix II, infra. v. Hyde, 14 App. Div. 530. 28 Schenck v. Ellingwood, 3 Edw. ^"4 Kent, Comm. 333, note c (Phila. ed. of 1889). Nominal Forms to be Disregarded. 539 § 151. Nominal conditions may be disregarded Where the conditions annexed to a power are merely nominal, and evince no intention of actual benefit to the party to whom, or in whose favor, they are to be performed, they may be wholly disregarded in the execution of the power. Formerly i Revised Statutes, 736, section 120: § 120. Where the conditions annexed to a power are merely nominal, and evince no intention of actual benefit to the party to whom, or in whose favor, they are to be performed, they may be wholly disregarded in the execution of the power.^i Construction of Section 151, Supra. The word " conditions " in this section is probably the equivalent of " forms," as " conditions precedent," or conditions prescribed by a grant or devise, as prece- dent to the vesting of a power, are still to be performed. ^^ At common law forms non-essential to the validity of an act were, nevertheless, if required by the donor of the power, to be literally performed in order to make an execution of the power good at law.^^ The revisers saw fit to absolve the grantee of the power from such of the prescribed forms as were purely nominal or non- essential to the valid execution of the act empowered,^* except consent of third parties provided for in a subsequent section.^® Section 150, Supra. Section 150 of this act is of a similar import to the present section, and should be consulted in connection with it, although the evils intended to be remedied by the several sec- tions were probably quite distinct. 31 Repealed, chap. 547, Laws of original Revisers to Article on 1896. Powers, Appendix II, infra. 32 § 134, The Real Prop. Law ; Kis- ** Macy v. Sawyer, 66 How. Pr. sam v. Dierkes, 49 N. Y. 602; Gris- 381. wold v. Perry, 7 Lans. 98 ; Allen v. 36 § j j^^ xhe R«al Prop. Law ; for- De Witt, 3 N. Y. 276, 278. merly i R. S. 736, § 122; Phillips 33 I Sugd. Pow. 251, 252, 253; Haw- v. Davies, 92 N. Y. 199; Kissam v. kins v. Kemp, 3 East, 410; Note of Dierkes, 49 id. 602; Stokes v. Hyde, 14 App. Div. 530. 540 Intent of Grantor to be Observed. § 152. Intent of grantor to be observed — Except as provided in this article, the intentions of the grantor of a power as to the manner, time and conditions of its execution must be observed; subject to the power of the supreme court, to supply a defective execution as provided in this article. Formerly i Revised Statutes, 736, section 121 : § 121. With the exceptions contained in the preceding sections, the inten- tions of the grantor of a power, as to the mode, time and conditions of its execution, shall be observed, subject to the power of the court of chancery, to supply a defective execution, in the cases hereinafter provided.38 Construction of Section 152, Supra. It is well understood that the common law governs real property excepting in so far as that law is expressly abrogated by statute. Courts have otherwise no power to depart from the common law as prescribed by the Constitution.^^ Therefore, if this article does not expressly absolve a grantee of a power from executing the power as directed by the grantor, he must still follow the directions as at common law.^* The cases bear- ing on powers in trust and their due discharge by the trustees are commonly cited as bearing on the rule stated in this section;^* whereas strictly they have no application, as the section probably was intended to refer to the execution of powers operating solely under this statute,*" and not to powers in the nature of trusts, breaches of which are amply remedied by the law regulating fidu- ciaries and trusts. Appointments to Charitable Uses. How far this section, in con- nection with section 93 of this act,*^ strengthens indefinite appoint- ments to charitable uses, may be a question for consideration in all such cases. It emphasizes the fact that as to formal matters the intention governs. The statute has now sanctioned uncertain 36 Repealed, chap. 547, Laws of Woerz v. Rademacher, 120 id. 62, 68 ; 1896. Benedict v. Arnoux, 7 App. Div. i ; 37 Co. Litt. 115b; Challis, 152; Cun- revd., 154 N. Y. 715; Russell v. Rus- liffe V. Brancker, 3 Ch. Div. 393, 410; sell, 36 id. 581; i Sugd. Pow. 250 seq. Fitzgerald v. Quann, 109 N. Y. 441; 39 chap. Ex. Trusts & Pow., § 627, Dean v. M. E. R. Co., 119 id. 540; cf. and see Rochevot v. Rochevot, 74 Marshall v. Mosely, 21 id 280, 292. App. Div. 585, 590. 38 Allen V. Dewitt, 3 N. Y. 276, ** Vide supra, pp. 448-454. 278; Barber v. Gary, 11 id. 397; *^ The Real Prop. Law. Cy Pres Doctrine. 541 tises for charity, and under the analogies of the former law should sanction uncertain appointments.*^ The Cy Pres Doctrine.*^ The cy pres doctrine, or the canon of approximate construction, has been held to have no application to powers of appointment since the Revised Statutes.** But this section under consideration would certainly have justified the appli- cation of any doctrine which seeks only to effectuate the intention of the grantor of the power, at least when the power is created by will.*^ The cy pres doctrine is often made appHcable in this country to the construction of wills by statute, and it is not irrele- vant to the execution of powers.*® Thus section 157 of this act is an extensive application of the doctrine of cy pres as was section 2, I Revised Statutes, 748. The doctrine of cy pres was applied, in connection with powers, to estates tail. As these are abolished in this State, the doctrine itself ceases, but the equitable doctrines relative to excessive execution of powers were very closely allied to cy pres, for they separated good appointments from bad or ex- cessive appointments and upheld the good pro tanto.^'' The cy pres doctrine is now by statute appHcable to powers of appointment to charity.** Devise or Grant of Power, when Severable. It is well understood that where a limitation of a power may be separated from a void scheme of trusts, the power will stand though the trusts fall.*® Fraud. Where donee of a power, commits a fraud by executing the power for his own benefit instead of for a particular trust pur- pose the execution will be set aside.'*' Intent of Grantor, when Disregarded. A power may be executed con- trary to the intent of the grantor in some few specified instances."^ *2 1 Sugd. Pow. 254 ; Kelly v. 308, 309 ; 4 Kent, Comm. 508, note ; i Hoey, 35 App. Div. 273. R. S. 748, § 2. *3 See the notes to Alexander v. « See under § 157, The Real Prop. Alexander, Tudor, Lead. Cas. Real Law. Prop, for applications of this doc- 48 yicle supra, under § 93, The Real trine to Powers. Prop. Law. « Hillen V. Iselin, 144 N. Y. at p. 49 Lindo v. Murray, 91 Hun, 335. 274, et supra, ■p. 469. Bo Aleyn v. Belcher, i Eden. 132; 45 Cy pres does not apply to deeds, s. c, i White & Tudor, Lead. Cas. Brudenell v. Elwes, i East 440. in Eq. 437; Gardner v. Dembinsky, 46 Jackson v. Brown, 13 Wend. 437 ; 52 App. Div. 473, 477 ; and see under Coster V. Lorillard, 14 Wend, at pp. § 79, The Real Prop. Law. 51 § 231, The Real Prop. Law. > 542 When Consents Requisite to Execution of Power. § 153- Consent of grantor or third person to execution of power. — Where the consent of the grantor or a third person to the execution of a power is requisite, such consent shall be expressed in the instrument by which the power is executed, or in a written certificate thereon. In the first case, the instrument of execution, in the second, the cer- tificate, must be subscribed by the person whose consent is necessary; and to entitle the instrument to be recorded, such signature must be acknowledged or proved and cer- tified in like manner as a deed to be recorded. Formerly i Revised Statutes, 736, section 122: § 122. When the consent of a third person to the execution of a power is requisite, such consent shall be expressed in the instrument by which the power is executed, or shall be certified in writing thereon. In the first case, the instrument of execution, in the second, the certificate, shall be signed by the party whose consent is required; and to entitle the instrument to be recorded, such signature must be duly proved or acknowledged, in the same manner as if subscribed to a conveyance of lands.^^ Construction of Section 153, Supra. The consent of a single third person may still be made requisite, as at common law,^* to the due execution of a power. And if such person die before the consent is manifest, the power, unless otherwise provided in the grant of the power, is gone.°* Whenever such consent is required, it must be manifested with the formalities required by this section, and an informal consent is insufficient.^ The present section of this act places the consent of grantor in the same category as consents of third persons. When Third Person Dead. But a limitation may be so framed as to make it apparent that grantor intended to make the consent of a third person conditional only upon such third person's being alive at the time of the execution of the power.^® 52 Repealed, chap. 547, Laws of B5 Barber v. Gary, 11 N. Y. 397 ; cf. i8g6. Stokes v. Hyde, 14 App. Div. 53°; 53 Hawkins v. Kemp, 3 East, 410; i Hoyt v. Hoyt, 17 Hun, 192; s. c, 85 Sugd. Pow. 253. N. Y. 142; Gardner v. Dembinsky, 6* Kissam v. Dierkes, 49 N. Y. 602 ; 52 App. Div. 473, 475. Mott v. Ackerman, 92 id. S39 ; Phil- ^6 House v. Raymond, 3 Hun, 44 ; lips V. Davies, id. 199; Gulick v. Kimball v. Chappell, 27 Abb. N. C. Griswold, 14 App. Div. 85; affd., 160 437; Odell v. Youngs, 64 How. Pr. N. Y. 399; Stokes v. Hyde. id. 530. s6; Hoyt v. Hoyt, 85 N. Y. 142; Phillips v. Davies, 92 id. 199. When All Must Consent to Execution. 51-3 § 154. When all must consent — Where the consent of two or more persons to the execution of a power is requisite, all must consent thereto; but if, before its execution, one or more of them die, the consent of the survivor or survivors is sufficient, unless otherwise prescribed by the terms of the power. Section 154, Supra. The Commissioners of Statutory Revision announce that this section is new, and that the last clause pre- scribes a new rule.^'^ Construction of Section 154, Supra. The Commissioners of Statu- tory Revision were undoubtedly correct in their statement,^^ that a power, the execution of which was made entirely dependent on the consent of two or more persons, was extinguished by the death of such persons before consent.^* As this section of The Real Property Law is framed it does not, however, preclude the extin- guishment of a power by the death of one of several persons whose consent is so made requisite; provided that the consent of the deceased was indispensable to the execution of the power by the very terms of the grant, and he died before such consent given. Consent. The limitation may be so framed as to require the con- sent of certain officers^" or of a class.*' In such cases the wis- dom of the rule stated in this section is apparent and even declara- tory of pre-existing decisions. Consent Conditional on Living. Again, the grant of a power may be so framed as to make it apparent that the consent of third per- sons was only provisional or conditional upon their being alive at a certain time.^^ Section Jiot Retroactive. This section is not retroactive.^^ s^ Report of Commissioners of Batchelor, 28 Barb. 310; Perry v. Statutory Revision, section 154 (Ap- Tynen, 22 id 137; People ex rel. pendix I, infra), citing Barber v. Hawes v. Walker, 23 id. 304, as to Cary, ii N. Y. 397. statutory powers. 58 Note to this section, Appendix I, 61 Hoyt v. Hoyt, 85 N. Y. 142 ; infra. Hamilton v. N. Y. Stock E. B. Co., BSGulick V. Griswold, i6o N. Y. 20 Hun, 88. 399; and see the cases cited, supra, 62 gee the cases to this effect cited under § 153, The Real Prop. Law ; under § 153, The Real Prop. Law. and c/. Farw. Pow. (ist ed.) 117. 63 Qulick v. Griswold, 160 N. Y. 60 Correll v. Lauterbach, 14 Misc. 399. Rep. 469; cf. People ex rel. Loew v. 544 Omission to Recite Power. § 155. Omission to recite power An instrument executed by the grantee of a power, conveying an estate or creating a charge, which he would have no right to convey or create, except by virtue of the power, shall be deemed a vahd exe- cution of the power, although the power be not recited or referred to therein. Formerly i Revised Statutes, TiJ, section 124: § 124. Every instrument executed by the grantee of a power, conveying an estate or creating a charge, which such grantee would have no right to con- vey or create, unless by virtue of his power, shall be deemed a valid execu- tion of the power, although such power be not recited or referred to therein."* Section 155, Supra. This section and section 231 of this act furnish rules of construction applicable only under the circumstances there denoted.*^ The rule stated in this section is founded on a reasonable presumption, recognized by the common law.®^ If a grantee of a power deal with specific property in which he has no interest, except under a grant of such power, the dealing, if author- ized, should be regarded as an execution of the power, although no reference be made to the power.®'' But this section has no application where the grantee has both an interest and a power.^* This section in terms includes appointments by either deeds or wills. In a very carefully considered opinion, this section of The Real Property Law is regarded as declaratory of the rules of construction prevailing in that " country from whose jurispru- dence our statutes in relation to powers were mainly derived." ®* Mutual Life Ins. Co. v. Shipman. The case last cited in our text™ is instructive not only in connection with this section, but with ** Repealed, chap. 547, Laws of Bank v. Brass, 59 id. 370; § 231, The 1896. Real Prop. Law. ^ Mut. Life Ins. Co. v. Shipman, ^ Mut. Life Ins. Co. v. Shipman, 119 N. Y. 324; White v. Hicks, 33 119 N. Y. 324; Weinstein v. Weber, id. 383; Weinstein v. Weber, 178 id. 58 App. Div. 112; affd., 178 N. Y. 94; 94, 100. and see under the following section 68 2 Chance, Pow. 84 ; White v. of this act. Hicks, 33 N. Y. at p. 393; Sir E. «9Mut. Life Ins. Co. v. Shipman, Clere's Case, 6 Rep. 17b. 119 N. Y. at p. 329. 6T Doody v. Holwedell, 22 App. ™ Id., supra. Div. 456; Albany Exchange Savings Omission to Recite Power. 545 the entire article on Powers. The opinion there rendered shows the accuracy of the statement, made in the earlier pages of this work to the effect, that the existing law of powers is but a modifi- cation of the earlier common law, and that the abolition of all powers, other than those tolerated in this article, did not essen- tially abridge the dominion of owners over their property or their right to delegate their powers over their estates.^^ ''I Supra, p. 463. 35 546 When Devise, Execution of Power. § 156. When devise operates as an execution of the power — Real property embraced in a power to devise passes by a will purporting to convey all the real property of the tes- tator, unless the intent that the will is not to operate as an execution of the power, appears, either expressly or by necessary implication. Formerly i Revised Statutes, 737, section 126: § 126. Lands embraced in a power to devise, shall pass by a will purport- ing to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power, shall appear, expressly or by necessary implication.^^ Old Law. At common law a general devise was not an appoint- ment, where the grantee of the power had an interest, or other lands to answer to the devise.'^* The general rule of the common law was that to execute a power there. must be a reference to it;^* but in the case of a will circumstances might be relied on to show that there was an intention to execute the power even where no reference was made to the power.'^^ The Revised Statutes. The Revised Statutes made a general devise an execution of a power, unless circumstances rebutted the presumption that such was testator's intention.'^^ But where the testator had both a power and an interest, a general devise is still presumed to refer to the interest." Appointment by Deed. This section can have no reference to an appointment by deed, for in terms it is confined to devises. A deed, without reference to a power, may be construed either as a conveyance of an interest or as an execution of a power, accord- ing to the intention of the parties which is sought to be arrived ^2 Repealed, chap. 547, Laws of Benedict, i Bradf. 114; Thomas v. 1896. Snyder, 43 Hun, 14; Matter of Pil- TS 2 Chance, Pow. 84 ; Mut. L. L Co fard, 42 id. 34 ; Bolton v. De Peyster, V. Shipman, 119 N. Y. at p. .328. 25 Barb. 539, 564; Matter of Watson, ■^4 I Sugd. Pow. 371. 34 N. Y. St. Rep. 906; s. c, 39 id. ''^ I Sugd. Pow. 356, 371 ; Lockwood 42 ; Lockwood v. Mildberger, 159 N. V. Mildeberger, 159 N. Y. 181, 185. Y. 181 ; U. S. Trust Co. v. Chauncey, 76 Hutton V. Benkard, 92 N. Y. 29S ; 32 Misc. Rep. 358, 365. Mott V. Ackerman, id. 539; N. Y. "Mut. Life Ins. Co. v. Shipman, Life Ins. & T. Co. v. Livingston, 133 119 N. Y. 324; Weinstein v. Weber, id. 125; Kibler v. Miller, 57 Hun, 14; 58 App. Div. 112; i Sugd. Pow. 412 affd., 141 N. Y. 571; Van Woert v. seq. When Devise, Execution of Power. 547 at.'* But, as a rule, a general deed will be construed to refer to an interest where donee has both an interest and a power.'^^ Power of Revocation, how Executed. A power of revocation at the will of grantor is void as to purchasers and incumbrancers of grantor of any estate so Hable to be revoked.*" Where such a power is given to a third person, a conveyance by such person for a valuable consideration is an execution of the power.*^ A grant by such third person before he is entitled to execute such power operates as an estoppel.*^ ''K I Sugd. Pow. 435 ; supra, p. 544. *<* § 231, The Real Prop. Law. TO 2 Chance, Pow. 71 ; Weinstein v. *i § 231, The Real Prop. Law. Weber, 58 App. Div. 112. 82 § 231, The Real Prop. Law. 548 Disposition Not Void Because Too Expensive. § 157. Disposition not void because too extensive. — A dis- position or charge by virtue of a power is not void on the ground that it is more extensive than was authorized by the power; but an estate or interest so created, so far as embraced by the terms of the power, is valid. Formerly i Revised Statutes, 737, section 123 : § 123. No disposition, by virtue of a power, shall be void in law or in equity, on the ground that it is more extensive than was authorised by the power ; but every estate or interest so created, so far as embraced by the terms of the power, shall be valid.** Cy Pres Doctrine and Excessive Execution. The doctrine of cy pres, or approximate execution, and the equitable doctrines relative to the excessive execution of powers, where the grantee of the power has exceeded his authority, are closely allied. The doctrine of cy pres, by the adjudged cases applying it, extended to excessive execution of powers of appointment. Under that doctrine certain appointed estates unauthorized were regarded as estates tail.** The other doctrines relative to excessive execution of powers separated the good from the bad parts of the execution if possible, and upheld the execution pro tanto.^ The doctrines of excessive execution applied where the estate granted by the donee of the power could not be turned into an estate tail under the doctrine of cy pres.^ Estates tail no longer exist in this State, and the doc- trine of cy pres has not now any strict application to powers, except as to appointments to charity .^'^ But the equitable doctrines rela- tive to excessive execution are only confirmed by this section of this act, and such are closely allied to the cy pres doctrine, in its larger sense.** Whenever the provision in excess of the power may be eliminated without disturbing the scheme, the excessive execution stands under this section.*® And such was the rule at common law before the Revised Statutes.*" *3 Repealed, chap. 547, Laws of 1896. ^^ Supra, pp. 540, 541. ** All the cases cited by Sugden and 8^ Hillen v. Iselin, 144 N. Y. 365, Chance are of this nature. 2 Sugd. 374, et supra, pp. 452, 453. Pow. 57; 2 Chance, Pow. 58 seq.; 88 Root v. Stuyvesant, 18 Wend, at Tudor, Lead. Cas. Real Prop. (3d ed.) pp. 274, 288; Hillen v. Iselin, 144 N. 409- Y. 365, 380. *5Farw. Pow. (ist ed.) 250; 2 89Hillen v. Iselin, 144 N. Y. at p. Sugd. Pow. 62 seq.; 2 Chance, Pow. 380. 45 seq.; and see remarks, supra, un- 90 2 Chance, Pow. 511, § 2891. der § 152, The Real Prop. Law. Disposition Not Void Because Too Expensive. 549 This Section Applies to Excessive not Deficient Executions. This sec- tion applies to excessive and not to deficient executions of powers.®^ Where a power is not well and sufficiently executed, because the grantee of the power has partially executed, or has not exhausted, his authority, the execution was formerly good pro tanto,^^ and it might be aided in equity in a proper case. This principle is now stated in the statute, in respect of powers in trust, which embrace many former powers,^* and as the general equitable jurisdiction of the Supreme Court remains co-extensive with that of the Court of Chancery, a defective execution of other powers will, no doubt, be remedied in a proper case. Power of Revocation. A deed executed by a person, having a power of revocation and appointment, before the date specified by the grantor of the power, operates as an estoppel against the grantee of the power.** 91 Austin V. Oakes, 48 Hun, 492, 83 § i^^, The Real Prop. Law. 496; s. c, 117 N. Y. 577. 9*§ 231, The Real Prop. Law. 92 2 Chance, Pow. 511; Tudor, Lead. Cas. Real Prop. 422. 550 Computation of Term of Suspension. § 1 58. Computation of term of suspension. — The period dur- ing which the absolute right of alienation may be sus- pended, by an instrument in execution of a power must be computed, not from the date of such instrument, but from the time of the creation of the power. Formerly i Revised Statutes, 737, section 128: § 128. The period during which the absolute right of alienation may be suspended, by any instrument in execution of a power, shall be computed, not from the date of such instrument, but from the time of the creation of the power.95 This Section Relates to the Rule against Perpetuities. This section and the one following it®^ have a distinct relation to the rule against perpetuities, or that rule now more commonly called " the rule against unlawful suspension of the power of alienation." ®^ Powers of Appointment. After the Duke of Marlborough's case®^ powers of appointment, whereby executory limitations arose, were regarded as within the former rule against a perpetuity; and con- sequently no limitation could be effected by a power of appoint- ment, if it could not have been effected by the original instrument creating the power.^* For the purpose of this rule, the date of the operation of the original instrument, and not that executing the power, determined the time when the rule began to run.^ This rule did not, at common law, apply to general powers.^ The doctrine of relation, whereby an instrument in execution of a power related b.ack to the inception of the original instrument creating the power, was fictio juris, and not upheld to advance a wrong.^ This doctrine always applied, however,* and applies still, under this section, for the purposes of the rule against perpetuities.^ 95 Repealed, chap. 547, Laws of ^ Jackson v. Davenport, 20 Johns. 1896. 537, 546; Matter-of Stewart, 131 N. 96 The Real Prop. Law, § 159. Y. 274, 281. »■? The Real Prop. Law, § 32. * Henry v. Davis, 7 Johns. Ch. 40. 9* Sugden's Gilbert on Uses, p. 160, 6 Pargo v. Squiers, 154 N. Y. 250; note. Hillen v. Iselin, 144 id. 365, 378; 99 Chain s, 156 I Chance, Pow. 115, Dana v. Murray, 122 id. 604; Genet 439; 2 id. I. V. Hunt, 113 id. 158; Crooke v. 1 Challis, 156. County of Kings, 97 id. 421, 445 ; ^Challis, 156. Beardsley v. Hotchkiss, 96 id. 201, Computation of Term of Suspension. 551 Title of Appointee. It is true that the title of an appointee may vest only at the time of appointment, yet it relates back and is acquired under the instrument creating the power.® 214; Conkling v. N. Y. El. R. R. Co., erroneous; Chapl. Ex. Trusts & Pow., 76 Hun, 420; Matter of Harbeck, i6i § 679. N. Y. 211, revg. 43 App. Div. 188, « Matter of Stewart, 131 N. Y. 274; igi ; cf. Frear v. Pugsley, 9 Misc. Matter of Harbeck, 161 id. 211, revg. Rep. 316, 322, which case said to be 43 App. Div. 188. 552 Who May Take Under a Power. § 159. Capacity to take under a power. — An estate or inter- est cannot be given or limited to any person, by an instru- ment in execution of a power, unless it would have been valid, if given or limited at the time of the creation of the power. Formerly i Revised Statutes, 737, section 129: § 129. No estate or interest can be given or limited to any person, by an instrument in execution of a power, which such person would not have been capable of taking, under the instrument by which the power was grantedJ Construction of Section 159. Section 158* is the complement of this section, and in logical order this section, 159, should have pre- ceded section 158, for it is this section which subjects all estates created by powers to the rules regulating the creation of legal estates by principals;" whereas section 158 states only a subordi- nate principle concerning the computation of time under the rule against perpetuities. Rule against Perpetuities. The application of the rule against per- petuities of estates, created under powers, is provided for by three separate sections of this act.^" Section iii prohibits a grantor from empowering an act which he himself could not do. Section 124 prohibits the reservation of any act which may not be law- fully delegated, while this section acts obliquely on the grantee and prevents any estate from passing under a power, unless such estate might have been valid in the instrument creating the power.^^ The Revised Statutes. Under the Revised Statutes, as before those statutes,^^ it was a general principle that a power could not be the medium of a perpetuity any more than a direct limitation. ^^ But what powers tend to a perpetuity, and what do not, are now, as at common law, the questions for professional consideration; for ■? Repealed, chap. 547, Laws of 1896. 321 ; Root v. Stuyvesant, 18 id. 257, ^ Supra, The Real Prop. Law. 264, 265; Belmont v. O'Brien, 12 N. 9 Art. II, The Real Prop. Law ; Y. 394, 403 ; Everitt v. Everitt, 20 id. Dempsey v. Tylee, 3 Duer, 73, loi. 39, 78 ; Read v. Williams, 125 id. 560, 10 §§ III, 124, 159. 569; Booth V. Baptist Church, 126 id. "Dempsey v. Tylee, 3 Duer, 73, 215, 239; Sweeney v. Warren, 127 id. loi; Murray v. Miller, 178 N. Y. 316, 426, 433; Tilden v. Green, 130 id. 29, 324. 54; and see supra, § 159, The Real 12 I Sugd. Pow. 178 ; supra, p. S50. Prop. Law. 1* Salmon v. Stuyvesant, 16 Wend. / Who May Take Under a Power. 553 not all limitations of powers, and not all powers, tend to infringe the rule against perpetuities. Powers of Appointment. It must be conceded that all powers of appointment, whereby executory limitations are to arise as future estates, are within the rule against perpetuities^* now as formerly.^^ Whenever the power limits a new use, the power tends to a perpetuity. So those powers in trust, which necessarily suspend the power of alienation, are within the rule.^^ But not all powers in trust are within the rule; for a power of sale, for example, cannot be said, per se, to suspend the power of aliena- tion,^^ unless the proceeds of such sale are to be held on further trusts,^* or the execution of the power of sale is unduly postponed by the limitation of the power. ^^ Power of Revocation. A power of revocation may be good as against the donee of the power, although executed contrary to the grant of the power. ^^ 1* Salmon v. Stuyvesant, i6 Wend. 321 ; Root V. Stuyvesant, 18 id. 257, 265 ; Booth V. Baptist Church, 126 N. Y. 21S, 240; Hillen v. Iselin, 144 id. 36s, 378. 15 I Sugd. Pow. 178. 1® A trust or power in trust sus- pends the power of alienation, only when the trust purpose prevents an alienation by the trustee. This pre- vention is by virtue of i R. S. 731, § 6s; § 8s, The Real Prop. Law. Russell V. Russell, 36 N. Y. 581, 584; Beardsley v. Hotchkiss, 96 id. 201, 214; Hillen v. Iselin, 144 id. at p. 379, et supra, p. 479, under § 117, The Real Prop. Law. 1'^ Garvey v. McDevitt, 72 N. Y. 556, 563 ; Robert v. Corning, 89 id. 225, 239; Henderson v. Henderson, 113 id. I, 10; Cussack V. Tweedy, 126 id. 81, 87 ; Deegan v. Wade, 144 id. 573 ; Blanchard v. Blanchard, 4 Hun, 289. 18 Savage v. Burnham, 17 N. Y. at p. 572; Allen V. Allen, 149 id. 280; Underwood v. Curtis, 127 id. 523. iSHobson v. Hale, 95 N. Y. 588, 609; Dana v. Murray, 122 id. 604, 614; Matter of Will of Butterfield, 133 id. 473; Trowbridge v. Metcalf, 5 App. Div. 318. 20 § 231, The Real Prop. Law. 554 Purchase Under Defective ExEcuxioisr. § 1 60. Purchase under defective execution. — A purchaser for a valuable consideration, claiming under a defective execu- tion of a power, is entitled to the same relief as a similar purchaser, claiming under a defective conveyance from an actual owner. Formerly i Revised Statutes, TiT, section 132: § 132. Purchasers for a valuable consideration, claiming under a defective execution of any power, shall be entitled to the same relief in equity, as similar purchasers, claiming under a defective conveyance from an actual owner.2l Comment. Under section 143 of this act,^ a reference was made to the former rules touching defective execution of powers. This section, now under consideration, refers specifically to judicial aid to purchasers in cases of defective execution of powers. Before the Revised Statutes relief against defective executions was frequently granted in equity in favor of purchasers.^^ And for this purpose a wife, under marriage articles,^* a mortgagee^ and a lessee^^ were regarded as purchasers. Equity would relieve in case of the want of a seal or of witnesses,^'' or in case of a defect in the description of the property appointed. Since the Revised Statutes, in a proper case, equity must aid a defective execution in favor of a purchaser.^® But the remedy cannot be invoked in all cases by purchasers under defective executions of powers. For example, in an action for specific performance, it was held that purchasers were not entitled to relief in such a case.^^ Term " Purchaser " Includes Mortgagee and Lessee. Before the Re- vised Statutes, equity, as stated above, included in the term " purchasers " under this rule, both mortgagees and lessees.** Cer- tainly those persons are still within the equity of the present sec- tion and will be entitled to reHef whenever their title is imperfect by reason of a defective execution of a power.*^ 21 Repealed, chap. 547, Laws of ^s Barber v. Gary, 11 N. Y. 397, 400; 1896. cf. Correll v. Lauterbach, 14 Misc. 22 Supra, p. 529. Rep. 469, 473 ; Ward v. Stanard, 82 23 See the cases cited, 2 Chance, App. Div. 386, 395. Pow., § 2830, p. 494. 29 Correll v. Lauterbach, 14 Misc. 2*2 Chance, Pow. 494, Rep. at p. 473. ^ 2 Sugd. Pow. 93. so £j 2 Sugd. Pow. 93, citing sev- 26 Campbell v. Leach, Arab. 740. eral cases. 27 Schenck v. Ellingwood, 3 Edw. 3i And see § 231, The Real Prop. Ch. 17.S. Law. Instrument Affected by Fraud. 555 § i6i. Instrument affected by fraud — An instrument in exe- cution of a power is affected by fraud, in the same manner as a conveyance or will, executed by an owner or by a trustee. Formerly i Revised Statutes, 737, section 125 : § 125. Instruments in execution of a power are affected by fraud, both in law and equity, in the same manner as conveyances by owners or trustees.32 Construction of Section 161, Supra. This section is equivalent to a clause saving existing jurisdictions; for, at the time of the enact- ment of the original section, a deed or will in execution of a power was affected by fraud in the same manner as a deed or will not in execution of a power.^'* The fraud referred to in this sec- tion may be the fraud of a third person, not the grantee of the power ,^* or it may be the fraud of the grantee of a power in trust. Formerly there were some cases^^ involving fraudulent execu- tions of powers which equity, alone could reach; the power, in such cases, was executed according to the terms of it, but there was some unlawful bargain behind it, or some ill motive which rendered the execution fraudulent.^^ In all such cases equity afforded appropriate relief. At the present day the like jurisdiction is vested in the courts of general powers. The jurisdiction over cases involving fraudulent execution of powers remains as exten- sive as ever; the tribunal administering it and the form of redress have alone changed. The legislature has no power to abridge the jurisdiction of a court established by the Constitution.^'^ At the time the Revised Statutes took effect the jurisdiction of the Court of Chancery over fraud was established, and this section being declaratory neither enlarged it nor detracted from it. 32 Repealed, chap. 547, Laws of ^ Matter of Vandevort, 8 App. Div. 1896. 341 ; Post v. Benchley, 48 Hun, 83, 90. 33 2 Sugd. Pow. 181; 2 Chance, 363 Sugd. Pow. 181; Aleyn v. Bel- Pow. 549, 552; Harty v. Doyle, 49 chier, i Eden, 132; s. c, i White & Hun, 410, 413. Tudor, Lead. Cas. in Eq. 437. 3* Scroggs v. Scroggs, Ambl. 272 ; 37 Alexander v. Bennett, 60 N. Y. Harty v. Doyle, 49 Hun, 410. 204; vide, p. 541, supra. 556 Sections Applicable to Trust Powers. § 162. Sections applicable to trust powers. — Sections ninety-one to ninety-three of this chapter, both inclusive, in relation to express trust estates, and the trustee thereof, apply equally to trust powers^ however created, and to the grantees of such powers. Formerly i Revised Statutes, 734, section 102 : § 102. The provisions contained in the second Article of this Title, from section sixty-six to section seventy-one, both inclusive, in relation to express trusts and trustees, shall apply equally to powers in trust, and the grantees of such powers.^® Construction of Section 162, Supra. The prior sections which are thus made applicable to powers in trust relate, (i) to the devolu- tion of a trust on the death of a last surviving trustee;*' (2) to the resignation or removal of a trustee;*" (3) to charitable, religious, educational and benevolent uses.*^ Death of Trustee of a Power. It is thus apparent, that on the death of the last surviving or sole trustee of a power in trust the trust, if unexecuted, vests in the Supreme Court and shall be executed by its direction,*^ unless the trust is purely personal.** Resignation of Trustee of a Power. So the trustee of a power in trust may resign, or be removed, and a new trustee appointed in his place.** When Power of Sale Passes to Administrators with the Will Annexed. If a power of sale is discretionary it cannot pass to an administra- tor with the will annexed.*^ Otherwise if it is peremptory and imperative involving no discretion.*^ 38 Repealed, chap. 547, Laws of ** § 92, The Real Prop. Law ; Far- 1896. rar v. McCue, 89 N. Y. 139, 144; 39 § 91, The Real Prop. Law. Cooke v. Piatt, 98 id. 35, 39 ; Oliver ^<'§ 92, The Real Prop. Law. v. Frisbie, 3 Dem. 22; Fleet v. Sim- *■' § 93, The Real Prop. Law. mons, id. 542. *2Crocheron v. Jaques, 3 Edw. Ch. « Greenland v. Waddell, 116 N. Y. 207; Clark V. Crego, 51 N. Y. 646; 234, 240; supra, p. 447. Delaney v. McCormack, 88 id. 174, « Mott v. Ackerman, 92 N. Y. 539, 182; Cooke V. Piatt, 98 id. 35, 39. 553, 554; Clifford v. Morrell, 22 App. *3See p. 469, under § iii. The Real Div. 470; Carpenter v. Bonner, 26 id. Prop. Law, "delegatus non potest 462; Merritt v. Merritt, 32 id. 442, delegare" and Chapl. Ex. Trusts & 448; Scott v. Douglas, 39 Misc. Pow., §§ 604, 726. Rep. 555 ; supra, at pp. 405, 442, 534. Sections Applicable to Trust Powers. 557 Charitable, Religious, Educational and Benevolent Uses. Section 93 of this act relating to charitable, religious, educational and benevolent uses, and declaring conveyances and devises to such uses not invalid for uncertainty of the beneficiaries, is now expressly appli- cable to trusts operative as powers in trust. *^ Prior to the enact- ment of The Real Property Law, chapter 701, Laws of 1893, had introduced this change in the law of New York, and as most charitaole trusts were operative only as powers in trust prior to 1893,** the act of 1893 necessarily applied to such powers in trust; and quite independently of this section.*^ This section, therefore, in so far as it concerns charities, is only declaratory of a change introduced by the law of 1893. If no Trustee of a Charitable Power in Trust Named. So where a chari- table use was operative as a power in trust and no trustee was named, the execution of the trust vested in the Supreme Court as declared in chapter 701, Laws of 1893, and as now stated in this section of this act.* In this respect both the act of 1893 and this section were declaratory of the pre-existing law. Omitted Sections. At present there are no sections of this act between section 162 and section 170. *'^ Supra, § 162, The Real Prop. Cottman v. Grace, 1 12 id. 299, 306, Law. 307; Erwin v. Hurd, 13 Abb. N. C. 91. *8 Downing v. Marshall, 23 N. Y. *» Kelley v. Hoey, 35 App. Div. 273. 366, 380; Adams v. Perry, 43 id. 487; 50§ 162, The Real Prop. Law. 558 The Real Property Law. ARTICLE V. Dower. Section 170. Dower. 171. Dower in lands exchanged. 172. Dower in land mortgaged before marriage. 173. Dower in lands mortgaged for purchase money. 174. Surplus proceeds of sale under purchase money mortgages. 175. Widow of mortgagee not endowed. 176. When dower barred by misconduct. 177. When dower barred by jointure. 178. When dower barred by pecuniary provisions. 179. When widow to elect between jointure and dower. 180. Election between devise and dower. 181. When deemed to have elected. 182. When provision in lieu of dower is forfeited. 183. Effect of acts of husband. 184. Widow's quarantine, 185. Widow may bequeath crop. 186. Divorced woman may release dower. 187. Married woman may release dower by attorney. § 170. Dower. — A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage. Formerly i Revised Statutes, 740, section i : § I. A widow shall be endowed of the third part of all the lands, whereof her husband was seised of an estate of inheritance, at any time during the marriage.^ Dower. Article II of The Real Property Law enumerates estates for life among the continuing estates in land, and regulates the creation of such estates when created by act of the parties. This article regulates both the inchoate interest technically termed " title " or " claim of dower," and the estate for life called " dower." Dower is created by act of the law, and not by act of the parties.^ 1 Repealed, chap. 547, Laws of 1896. 105 id. at p. 336 ; Steele v. Ward, 2McKeen v. Fish, 33 Hun, 28; 30 Hun, 555, 557; Huff v. Wheeler, Kursheedt v. U. D. S. Institution, 118 27 Misc. Rep. 763, 766; cf. Sommer N. Y. 358, 364 ; Witthaus v. Schack, v. Sommer, 87 App. Div. 434. Dower. 559 The ancient law of England made provision for the wife out of the husband's estate. At first it was confined to such lands as the hus- band had at the time of marriage.^ In the thirteenth century widows of tenants of socage lands claimed a moiety or one-half for dower.* But by Littleton's time common-law dower was restricted to one-third of the tenements which were the husband's during the espousals, unless there was a special custom to the contrary.® " Dower " under the Laws of the Province of New York. Long before the English occupation of New York, the quantum of dower in lands held by the socage tenure was fixed at one-third* of all such lands as the husband had in his lifetime. When the socage tenure was made the tenure of New York,'' dower followed as an incident of the introduction of that tenure and the formal establishment of the common law by the Crown. The Duke's Laws of 1664-5,* and an act of the first assembly of the province,® enacted in 1683, both recognized dower as a part of the law of the province. So did an act of 1691.^" Both these acts were, however, disallowed by the Crown, but without affecting dower, as they were, in this respect, simply declaratory of the law otherwise existing and established in the province. "Dower" under the State Government. The great English stat- utes affecting the law of dower,^^ being enacted before the estab- lishment of the common law in New York, were always recognized in the province, and they were adopted by the first Constitution of the State.i^ These statutes of England were formally re-enacted as statutes of the State, in the first revision of the State laws, 3 Glanvill, Lib. 6, c. 2. tenure by the Crown. Challis, 22 ; Co. * 2 Pol. & Mait. Hist. Eng. Law, Litt. 93b, note 3 ; Chetwode, Bart., v. 419, citing Bracton, f. 93; Note Book, Crew, Willes, 614. pl. 7S8. « Title " Dowryes." 5 Litt. § 37 ; 2 Bla. Com. 133, 134. 9 2 R. L., Appendix IL 6 Bissett, Estates for Life, chap. 4 ; 10 i Bradf. N. Y. Laws of 1694, p. cf. 2 Pol. & Mait. Hist. Eng. Law, 15. 418, seq.; West, Symbolaeography " 9 Hen. Ill, chap. 7 ; 20 Hen. Ill, (Edit, of 1594), § 41; 2 Bla. Com. chap. 20; 3 Edw. I, chaps. 40, 48; 13 133,- 134- Edw. I, chaps. 7, 14, 34 ; 27 Hen. VIII, ^ Patent of King Charles II to chap. 10. Duke of York of 1664, and Statute 12 12 Const, of 1777, § 35. Car. II, chap. 24, precluded any other 560 Dower. made by Jones and Varick in 1787/* and were again re-enacted in 1801," and in 1813.^^ Thence in substance they passed into the Revised Statutes/'^ and are now contained in this article of The Real Property Law.^'' Thus, the real basis of the existing law of dower is the common law of England as modified by statutes, ancient and modern. Section 170, Supra, and Cognate Statutes. In the section of The Real Property Law now under consideration, the survival of the common law is detected in the word " endowed," which derives its whole technical force from that law. This section as a general statutory restatement of the prevailing quantum of dower is older than Magna Charta,^^ which was only repeated in the above-men- tioned colonial statutes of New York, in 1683 and 1691.^^ The first formal re-enactment of those English statutes which prior to Independence extended to New York, fixed a widow's dower as " the third part of all the Lands of her Husband which were his at any Time during the Coverture." ^^ This language was made precise by the section of the Revised Statutes, set out at the head of this section.^^ The act of 1787 extended dower to all the lands in the State, whether such as were held by the socage tenure or made allodial ;^^ and henceforth there was no distinction between dower in the lands in tenure and in the lands made allodial until the time when all lands became allodial.^ The abolition of tenure did not afifect estates in lands. Definitions. Before the death of husband and admeasurement, the wife's right is strictly a " title " or " claim " of dower, and is so always designated in the older books. A title or " claim " of dower is an inchoate right before the husband's death, when it becomes " consummate. "2* " Title " or " claim " is the common law term to express an imperfect right, or power of entry on lands.^ After 13 2 J. & V. 4; I Greenl. 292. 21 j r. s. 740, § i. " I K. & R. SI. 222 J. & V. 4; id. 67, 68. 15 I R. L. 56. 23 Supra, pp. 46, 69, 82, 134, 135. 16 1 R. S. 740, seq. 24 Park, Dower, passim; Law- "Art. V, "Dower." rence v. Miller, 2 N. Y. at p. 254; 18 Ed. of 121S, chap. VII; Coke's Moore v. Mayor, 8 id. at p. 113. 2d Inst. 16. C/. 2 Pol. & Mait. Hist. 25^0. Litt. 34Sb; Wood's Iiisti- Eng. Law, 422. tutes, 114, 2 Preston, Abstracts of ^^ Supra. Title, 283, 284; Smith, Real & Pers. 20 2 J. & V. 4; I R. L. 56. Prop. 249; Haynes, Eq. 140. Dower. 561 the husband's death, the title or claim of entry is consummate. Since Tompkins v. Fonda (4 Pai. 448), this " title " has been improperly designated a " chose in action " and held assignable although " chose in action " is a term belonging to the law of per- sons and not to the law of real property.^* Had it been designated a " title " or " claim of dower," as at common law, it could not have been held assignable even in equity^'' as it now is in New York.^'* This mere "title" has even been held to be attachable before assignment,^ but not by the Court of Appeals. Statutory Definition of Dower. The Revised Statutes conformed the quantum of dower to that of Littleton^" and was in that respect more precise than the statute it superseded.^^ Dower extends only to such lands as the husband is seised of as an estate of inherit- ance during marriage.^^ In order to entitle a widow to dower three successive circum- stances must concur: (i) Marriage; (2) seisin of, and (3) death of, the husband. • ' Marriage. Prior to January I, 1902, the marriage need not be a ceremonial marriage, as by a long-estabHshed local interpretation of the common law a contract of marriage per verba de prcesenti was as valid in New York as a marriage celebrated in facie ecclesiw?'^ But since January i, 1902, a contract of marriage per verba de prasenti vel futuro, must be evidenced by a writing, signed by the parties and at least two witnesses who shall subscribe the same, and 28 2 Black. Comm. 396 ; Smith, Real 32 Poor v. Horton, is Barb. 485. & Pers. Prop. 249 ; Co. Litt. 34sb ; The term " seisin " or " seised " has Goodeve, Real Prop. 14. undergone great change in modern 2T I R. S. 739, § 147 ; § 225, The Real law. Matter of Dodge, 105 N. Y. Prop. Law; Towle v. Remsen, 70 N. 585, 591; and see under §§ 280, 281, Y. 303, 312, 313 ; Upington v. Corri- The Real Prop. Law, infra, and p. gan, 151 id. 143, 148; Harper v. Clay- 107, supra. ton, 35 Law Rep. Annot. 211. 33 Penton v. Reed, 4 Johns. 52; Van 28 Tompkins v. Fonda, 4 Pai. 448 ; Gilder v. Post, 2 Edw. Ch. 577 ; Hayes Payne v. Becker, 87 N. Y. 153 ; Pope v. The People, 25 N. Y. 390, 395 ; V. Mead, 99 id. 298; Bostwick v. Hynes v. McDermott, 82 id. 41, Beach, 103 id. 414; Mutual Life Ins. 46; s. c, 91 id. 451, 459; 2 Kent, Co. V. Shipman, 119 id. 324; Muir v. Comm. 87. It is denied that this was Hodges, 116 Fed. 912. the law of New York prior to indc- 29 Latourette v. Latourette, 52 App. pendence of the Crown. Lauderdale Div. '192. Peerages, 17 Abb. N. C. 439 and 30 § 36. notes ; s. c, L. R., 10 App. Cas. 692. 31 2 J. & V. 4; I R. L. s6. Cf. Rose v. Clark, 8 Paige, 574, .■579. 36 562 Dower. such writing must state the residence of all and the place of mar- riage. It must be acknowledged to entitle it to be recorded, and it must be recorded within six months after execution.^* The age of legal consent by both males and females is fixed at eighteen years.^ A ceremonial marriage may be solemnized by the persons speci- fied in " The Domestic Relations Law." ^® Seisin. Seisin of the husband must be either in deed or in law.^'^ It must be of a present freehold in possession as well as of an estate of inheritance.^* Therefore, when the husband has pre- viously to his death, simply a reversion in fee, or a vested remain- der expectant upon an estate for life, the widow is not endowed.** But where a remainderman purchases the intervening life estate his wife is endowed.*" Dower cannot be had on a dower estate, or as it is said, " dos de dote pefi non debet." *i But this maxim applies only where dower is actually assigned.*^ In the application of the maxim dos de dote peti non debet, Lord Coke made a distinction between a case where the husband of second dowress acquired by purchase, and one where ** See chap. 339, Laws of 1901, 39 Durando v. Durando, 23 N. Y. amending § 10 of Art. II, chap. 272, 331; House v. Jackson, 50 id. 161; Laws of 1896, entitled "An act relat- Dunham v. Osborn, I Paige, 634; ing to the Domestic Relations," Green v. Putnam, i Barb. 500; Beek- constituting chap. 48 of the General man v. Hudson, 20 Wend. 53; Clark Laws. V. Clark, 84 Hun, 362; Stewart v. 35 Chap. 272, Laws of 1896, § 4 ; Crysler, 52 App. Div. 597 ; 4 Kent, Conte V. Conte, 82 App. Div. 335. Comm. 38; Jackson v. Walters, 86 36 Chap. 48, General Laws, § 11; App. Div. 47a ; et vide supra, p. 226, chap. 272, Laws of 1896, as amended and compare Adair v. Lott, 3 Hill, by chap. 339, Laws of 1901, and chap. 182. 522, Laws of 1902. *o House v. Jackson, 50 N. Y. 161. 3^ Durando v. Durando, 23 N. Y. "4 Rep. 122; Co. Lit. 31a; Park, 331; Phelps V. Phelps, 143 id. 197; Dower, 54; Dunham v. Osborn, i Mclntyre v. Costello, 47 Hun, 289; Paige, 634; Safford v. Safford, 7 id. Bisset, Estates for Life, 70. 259 ; Durando v. Durando, 23 N. Y. 38 Safford v. Safford, 7 Johns. Ch. 331, 334. 259 ; Chamberlain v. Chamberlain, 43 *2 Bisset, Estates for Life, 94 ; Park, N. Y. 424, 441 ; Phelps v. Phelps, 143 Dower, 54, 157 ; Elwood v. Klock, id. 197, 200; Nichols v. Park, 38 Misc. 13 Barb. so. Rep. 176; revd., 78 App. Div. 95; Poillon V. Poillon, 90 id. 71, 75. Dower. 563 he came in by descent,*^ a distinction denied when the purchase is not by deed -but by devise.** Even before the Revised Statutes, the wife was not endowed of the husband's trust estate.*^ As equitable estates of cestuis que trustent were abolished by the Revised Statutes,*® there could be no ground for clain-ing dower thereafter in the husband's trust interests.*'^ But it has been held that under the Revised Statutes a widow is entitled to dower out of the descendible equitable interests in land where the husband died seised of such interests.** Other- wise of interests aliened before his death.** If the husband's estate is defeasible, or rescinded for fraud, the wife's inchoate right of dower is defeasible or defeated.^ Where the husband holds as joint tenant, the possibility of the estate being defeated by survivorship prevents dower.^^ So a mere transi- tory seisin in the husband is not sufificient to entitle wife to dower,"*^ as where the husband takes a conveyance and instantly gives back a mortgage to the vendor.^* To entitle a wife to dower, the same evidence of husband's seisin is necessary which would entitle his heir to maintain ejectment.^* *3 Co. Litt. 31a; Park, Dower, 154; Matter of Cregier, i Barb. Ch. 98. ** Durando v. Durando, 23 N. Y. 331 ; Dunham v. Osborn, i Paige 634. 46 Germond v. Jones, 2 Hill, 569, 573; Hawley v. James, s Paige, 318, 452; Manhattan Co. v. Evertson, 6 id. 457, 460, 46s ; 4 Kent, Comm. 43. 46 I R. S. 729, § 60; § 80, The Real Prop. Law. 4'^ Revisers' notes to i R. S. 740, tit. 3; Phelps V. Phelps, 143 N. Y. 197; Poillon V. Poillon, 90 App. Div. 71. 48 Hawley v. James, s Paige, 453, 454, 456; Matter of McKay, s Misc. Rep. 123; Starbuck v. Starbuck, 62 App. Div. 437. 49 Hicks V. Stebbins, 3 Lans. 39. ®o Scott V. Howard, 3 Barb. 319; Beardslee v. Beardslee, s id. 324; Warner v. Van Alstyne, 3 Paige, 513; Moriarta v. McRea, 45 Hun, 564; affd., 120 N. Y. 659; Hinchclifife v. Shea, 103 id. 153; Greene v. Rey- nolds, 72 Hun, 565 ; Hammond v. Pen- nock, 61 N. Y. 145 ; House v. Jackson, 50 id. 161, 164; Brackett v. Baum, id. 8 ; Williams v. Kinney, 43 Hun, i ; Weller v. Weller, 28 Barb. 588 ; Wil- kinson v. Paddock, 57 Hun, 191. 51 4 Kent, Comm. 37 ; Smith v. Smith, 6 Lans. 313 ; Jourdan v. Haran, 56 N. Y. Super. Ct. 185. 52 4 Kent, Comm. 38 ; Stohlin v. Golding, IS N. Y. St. Rep. 814; Brackett v. Baum, 50 N. Y. 8; De Lisle v. Herbs, 25 Hun, 485. 53 Cunningham v. Knight, i Barb. 399; § 173, The Real Prop. Law. 54 Jackson v. Waltermire, 5 Cow. 299; Bedlow V. Stillwell, 91 Hun, 384; and see Poor v. Horton, 15 Barb. 48s. 564 Dower. Death of Husband. Death of the husband must occur before the estate of the wife can be consummate. Until such death and assignment to her, her dower is only an inchoate right or " title " ^^ which, under some circumstances of fraud, etc., the law, however, recognizes and protects at her individual instance ;^^ and this right entitles her to redeem mortgaged premises, where she was not served with process,^'' even if the mortgage was made before her marriage.^* After dower is assigned, the widow has a freehold es- tate in possession as of the husband's seisin.^* Effect of Assignment. Until the assignment or admeasurement of dower, the widow has not an " estate " or " interest " in lands.^" The heir may eject her after the lapse of her quarantine,®^ and if she die before assignment or admeasurement of dower her title or claim to dower is extinct."^ What Property Widow Endowed of. What property the widow may be endowed of is not otherwise defined than by the common law and by this statute, which provides as above, that she " shall be endowed of the third part of all the lands whereof her husband was seised," etc.®^ Elsewhere in this act this term " lands " is declared to be coextensive with lands, tenements and hereditaments.®* By the common law the widow is endowed of mines wrought during 65 Lawrence v. Miller, 2 N. Y. 245 ; McMichael v. Russell, 68 App. Div. Moore v. The Mayor, etc., 8 id. no; 104. s. c, 4 Sandf. 456 ; Aikman v. Har- 5* Bell v. Mayor, etc., of New York, sell, 98 N. Y. 186; Payne v. Becker, 10 Paige, 49. Cf. 21 Hun, 36, 44; 8 87 id. 153; Simar v. Canaday, S3 id. Barb. 618. 298 ; Witthaus v. Schack, 105 id. 332 ; 59 Gibbs v. Esty, 22 Hun, 266 ; Law- McKeen v. Fish, 33 Hun, 28; Mut. rence v. Brown, S N. Y. 394, 400; Life Ins. Co. v. Shipman, 50 id. 578; Challis, 187. s. c, 119 N. Y. 324; Matthews v. ** Witthaus v. Schack, 105 N. Y. at Duryea, 4 Keyes, 525; Mills v. Van p. 337. Voorhies, 20 N. Y. 412 ; Steele v. *i Jackson v. O'Donaghy, 7 Johns. Ward, 30 Hun, 555, SS7; Huff v. 247. Wheeler, 27 Misc. Rep. 763. 62 McKeen v. Fish, 33 Hun, 28, 31 ; 58 Simar v. Canaday, 53 N. Y. 298; Howell v. Newman, S9 Hun, 538; Youngs V. Carter, i Abb. N. C. 136, Armstrong v. Union College, ss App. note; Clifford v. Kempfe, 147 N. Y. Div. 302. 383, 386; Emigrant Indus. Savings 83 See § 170, supra, The Real Prop. Bank v. Regan, 41 App. Div. 523, 525 ; Law. Poillon v. Poillon, 37 Misc. Rep. 729. 8* § i, The Real Prop. Law ; 4 Kent, 57 Taggart v. Rogers, 49 Hun, 265; Comm. 40; Moriarta v. McRea, 45 Hun, 564. Dower. 565 coverture, but not of mines unopened;^ of a pier;"® of an interest in a lease made by Seneca Indians;®^ in land subject to perpetual lease,"* but not in lands which husband held as tenant pur autre vie; they go to the husband's executor, or administrator."® A widow is endowed of a perpetual rent,™ but not of a perpetual lease.'^^ A general test of what tenements are subject to dower is to inquire whether the widow's issue, if any, would have been entitled to in- herit them from the husband as his heir. If they are so entitled, she is endowed.''^ She is entitled to dower in the husband's equity of redemption of lands mortgaged before coverture,''^ and in the surplus moneys arising in a foreclosure sale, even though she joined in the mortgage which stipulated that the surplus should be paid to the husband or those claiming under him.''* But she is not endowed of an estate which the husband held jointly as trustee, or singly as sole surviving trustee.''^ The dower which the widow is entitled to in lands ahenated by her husband during coverture is one-third of the value at the time of alienation.''" Partnership Lands. Dower does not attach to partnership lands until after dissolution and payment of creditors. The lands in 65 Coates V. Cheever, i Cow. 460, ''* N. Y. Life Ins. Co. v. Mayer, 12 478. A mine is a hereditament. Mat- N. Y. St. Rep. 119, affg. 19 Abb. N. ter of Hoysradt, 20 Misc. Rep. 265, C. 92, 103; Denton v. Nanny, 8 Barb. 270. 418; Hawley v. Bradford, 9 Paige, ssBedlow V. Stillwell, 91 Hun, 384; 200; Vartie v. Underwood, 18 Barb, affd., 158 N. Y. 292. S6i. Cf. Bank of Ogdensburg v. Ar- "7 Matter of McKay, 5 Misc. Rep. nold, 5 Paige, 38, as to dower in 123- equity before foreclosure; and Frost "8 Moriarta v. McRea, 45 Hun, 564. v. Peacock, 4 Edw. Ch. 678, where Cf. Williams v. Cox, 3 Edw. Ch. 178. husband dies after confirmation of "8 § 24, The Real Prop. Law ; 2 R. sale. Sed vide Matthews v. Duryee, 4 S. 82, § 6. Cf. Gillis V. Brown, 5 Cow. Keyes, 525. 388. 75 § 91^ xhe Real Prop. Law; ''0 Williams v. Cox, 3 Edw. Ch. 178. Cooper v. Whitney, 3 Hill, 95, loi ; Cf. Moriarta v. McRea, 45 Hun, 564. Terrett v. Crombie, 6 Lans. 82; 71 Finn v. Sleight, 8 Barb. 401. Gomez v. The Tradesmen's Bank, 4 72 2 Black. Comm. 131. Sandf. 102; Germond v. Jones, 2 Hill, 73 § 172, The Real Prop. Law. Un- 569, 573. less he released the equity of redemp- 76 Walker v. Schuyler, 10 Wend, tion to the mortgagee. Jackson v. 480; Van Gelder v. Post, 2 Edw. Ch. DeWitt, 6 Cow. 316; Van Dyke v. 577, 579 ; 4 Kent, Comm. 65 ; i Sedg- Thayre, 19 Wend. 162. wick, Meas. Dam. (7th ed.) 264. 566" Dower. equity are regarded as personalty until dissolution and liquidation of debts." Maxim, "Dower is Favored." Dower is always highly favored in the law.''^ Remedy if Bower not Assigned. Bx the.^ common law the widow's remedy for not assigning her dower consummate was a writ of dower unde nihil habet;''^ but if part was assigned and part only deforced, ^hen she had recourse to the writ of right of dower.^" The ancient English statutes concerning remedies for deforcement of dower were re-enacted in 1787, among the English statutes extending to New York, and adopted by the first State Constitution. ^^ The form of the writ is set out in the statute of 1787, which was several times re-enacted in later revisions.^^ In April, 1806, the widow was given a more speedy remedy in the Supreme, County and Surrogates' Courts,*^ in cases where dower was not assigned to her during her quarantine.®* v_The Revised Statutes abolished the writ of dower^ and substituted an action of ejectment,®^ continuing, however, the jurisdiction in the Surrogates' and the County Courts by petition.*'^ Under the Code of Procedure the proceeding for the admeasurement of dower might be by petition or by an action.^* Since 1880 the Code of Civil Procedure has confirmed and regu- lated the widow's action for dower.®* Proceedings to admeasure dower, a remedy once generally confined to the heir in cases where he assigned the widow too much,^ have since the statute of 1806"* '''' Vide supra, § 56, p. 335 ; Haupt- 83 i R. L. 60, 62. mann v. Hauptmann, 91 App. Div. ^* Cf. infra, § 184, The Real Prop. 197. Law. TSKonvalinka v. Schlegel, 104 N. 8^2 R. S. 343, § 24. Y. 125, 129 ; Lasher v. Lasher, 13 ®^ 2 R. S. 303, § 2. Barb. 106; Leonard v. Steele, 4 id. ^''2 R. S. 488. 20; Gray v. Gray, £ App. Div. 132; ®® i Crary Special Proceedings, i; Hindley v. Hindley, 29 Hun. 31^; 2 id. 317; §§ 2, 30, 307, Code of Proc; Fern v. Osterhout, 11 App. Div. 319. Brown v. Brown, 31 How. Pr. 481, Cf. Nelson v. Brown, 144 N. Y. 384, 499 ; Townsend v. Townsend, 2 Sandf. 391. 7"- ''^ Fitz Herbert, Natura Brevium, ^^ §§ 1596-1625 ; chap. 245, Laws of 147. 1880, repealing 2 R. S. 488, seq. (Tit. sold. 7; 3 Black. Coram. 183. 7> chap. 8, part 3). 81 2 J. & V. 4; Const, of 1777, § 35 ; 9" pjtz Herbert, Natura Brevium, Armstrong v. Union College, 55 App. 148; 2 J. & V. 5. Div. 302, 306. *' See the statute, cited supra, i R. 82 I K. & R. SI ; I R- L- .S6. L. 60. Dower. 567 partially, and 1880 wholly, taken the place of the older remedies indicated above. Period in which Dower may be Demanded. The Revised statutes short- ened the period in which the widow might demand dower, confin- ing it to twenty years ;*^ and, revising the statute of 1806 concern- ; ing- admeasurement of dower, prescribed the proceedings with '' great particularity.*^ Remedy in Equity. Besides the proceedings at law indicated, the widow had always a right to resort to equity to recover her dower, where impediments were thrown in the way of the legal proceed- ings.^* Where a husband executes a mortgage in which the wife does not join, she may bring an action to redeem within twenty years after the foreclosure.®® Law of Dower. The substantive parts of the law of dower are now contained in this act,®^ and are largely declaratory of the common law.*^ The adjective, or remedial, parts of the law are now em- bodied for the time being in the Code of Civil Procedure,®* as stated above under this section. ®- 1 R. S. 742, § 18, and Revisers' 711 ; Phelps v. Phelps, 143 N. Y. note to same; Code Civ. Proc, § 1596; 197; Starbuck v. Starbuck, 62 App. Kyle V. Kyle, 67 N. Y. 400, 407; Div. 437, 453, 454. Wetyen v. Fick, 90 App. Div. 43 ; ^ McMichael v. Russell, 68 App. affd., 178 N. Y. 223. Div. 104. 93 2 R. S. 488, seq.; now repealed, 96 The Real Prop. Law, art. V. chap. 24s, Laws of 1880, and em- 9^ House v. Jackson, 50 N. Y. 161, bodied in Code Civ. Proc, §§ 1596- 164; Price v. Price, 124 id. 589, 596. 1625. 98 §§ 1596-1625 ; Fiero on Special 9* Swaine v. Perrine, S Johns. Ch. Actions, chap. 3. 482 ; Townsend v. Townsend, 2 Sandf. 568 Dower in Lands Exchanged. § 171. Dower in lands exchanged. — If a husband seized of an estate of inheritance in lands, exchanges them for other lands, his widoAv shall not have dower of both, but she must make her election, to be endowed of the lands given, or of those taken, in exchange; and if her election be not evinced by the commencement of an action to recover her dower of the lands given in exchange, within one year after the death of her husband, she is deemed to have elected to take her dower of the lands received in exchange. Formerly i Revised Statutes, 740, section 3 : § 3. If a husband, seised of an estate of inheritance in lands, exchanges them for other lands, his widow shall not have dower of both, but shall make her election, to be endowed of the lands given, or of those taken, in exchange; and if such election be not evinced by the commencement of proceedings to recover her dower of the lands given in exchange, within one year after the death of her husband, she shall be deemed to have elected to take her dower of the lands received in exchange.*^ Comment on Section 171, Supra. This section is declaratory of the common law,-* excepting the latter clause, which is new.^ It has been held that the word " exchange " in this section is to receive the same interpretation which was applied to it when used at common law.^ By the common law, exchange was a recognized original conveyance,* the one in consideration of the other. The estates exchanged must be equal in quantity, not in value, but of interest, as fee simple for fee simple.^ Prior to the Statute of Frauds, neither livery of seisin nor a deed was necessary to an exchange, but it was executed by the entry of the parties.* Since the Statute of Frauds the exchange must be by deed in writing,^ and this is so in New York, at least since the Revised Statutes.* As all tenants in common have a right to demand partition and to equalize their shares by interchanging deeds, the wife's right to dower may fall under this section in such a case. A wife's inchoate title of dower is not paramount to the right of her husband's co- tenant to compel partition.^ 99 Repealed, chap. 547, Laws of 1896. * 2 Black. Comm. 323. 1 Co. Litt. 31b. ''Cruise, Dig., tit. 32, chap. 6, § 7. 2 Revisers' note to the original * 2 R. S. 134, § 6 ; § 207, The Real section, i R. S. 740, § 3. Prop. Law; Huntington v. Hunting- 3 Wilcox V. Randall, 7 Barb. 633 ; i ton, 9 Code Civ. Proc. Rep. 182. Sharswood & Budd, Lead. Cas. Real ^ Huntington v. Huntington, 9 Code Prop. 346. Civ. Proc. Rep. 182; Jordan v. Van *2 Black. Comm. 310. Epps, 85 N. Y. 427. As to wife's 5 2 Black. Comm. 323 ; Wilcox v. election see under § 181, infra Randall, 7 Barb. 633. D,owER IN Lands Mortgaged Before Marriage. 569 § 172. Dower in lands mortgaged before marriage Where a person seized of an estate of inheritance in lands, executes a mortgage thereof, before marriage, his widow is, never- theless, entitled to dower of the lands mortgaged, as against every person except the mortgagee and those claiming under him. Formerly i Revised Statutes, 740, section 4: § 4. Where a person seised of an estate of inheritance in lands, shall have executed a mortgage of such estate, before marriage, his widow shall never- theless be entitled to dower out of the lands mortgaged, as against every person except the mortgagee and those claiming under him.i" The Revised Statutes. This section of the Revised Statutes stated the pre-existing law of New York. Where a man, seised of mort- gaged land in fee, marries and dies, his widow is entitled to dower out of the equity of redemption.^^ In this State the equity of re- demption has long been regarded as the legal estate, devisable by will, and alienable by deed, in all respects as if it were an absolute inheritance at law.^^ The mortgagor was soon regarded as seised of the estate, at least before foreclosure or entry, so as to entitle his widow to dower.^^ For this reason the expression " mort- gagor's equity of redemption " has been criticised as inapplicable to this country." But it seems to express aptly the continued right of an owner, who holds an estate subject to a mortgage, to redeem it. The departure of the New York law from the English law of mortgage, which treats a mortgage as a conveyance, con- firms the widow's local right to dower in mortgaged lands of her husband.^® Section 172, Supra. But this section is not applicable to the case of a husband's purchase-money mortgage, where the seisin is tran- sitory. That case falls under another section. ^^ i<* Repealed, chap. 547, Laws of 1* Brief of counsel in Smith v. 1896. Gardner, 42 Barb, at p. 357. 11 Note of Revisers to i R. S. 740, is See citations Hist. Real Prop, in § 4, citing Coles v. Coles, 15 Johns, n. Y., pp. 88, 121. 319; and see Smith v. Gardner, 42 16§' 173^ xhe Real Prop. Law; Barb. 356; Denton v. Nanny, 8 id. Cunningham v. Knight, i Barb. 399; 618; Ulrich V. Ulrich, 17 N. Y. St. Mills v. Van Voorhies, 20 N. Y. 412, Rep- 414- 417 ; Brackett v. Baum, so id. 8. Sed 12 Waters v. Stewart, i Cai. Cas. 47. cf. Blydenburgh v. Northrop, 13 How. 1* Hitchcock v. Harrington, 6 Johns. Pr. 289. 290; Brackett v. Baum, 50 N. Y. 8, 11. 570 Dower in Lands Mortgaged for Purchase Money. § 173. Dower in lands mortgaged for purchase money — Where a husband purchases lands during the marriage, and at the same time mortgages his estate in those lands to secure the payment of the purchase-money, his widow is not entitled to dower of those lands, as against the mortgagee or those claiming under him, although she did not unite in the mortgage. She is entitled to her dower as against every other person. Formerly i Revised Statutes, 740, section 5 : § 5. Where a husband shall purchase lands during coverture, and shall at the same time mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands, as against the mortgagee or those claiming under him, although she shall not have united in such mortgage, but she shall be entitled to her dower as against all other persons. i'^ Observation on this Enactment. The original section of the Revised Statutes was conformed to Stow v. Tifift (15 Johns. 458), in which the court were divided ; the chief justice being of the opinion that the husband's instantaneous seisin was sufficient to cause the wife's title of dower inchoate to attach and defeat the purchase-money mortgage to the extent of one-third of the land.^® The original section of the Revised Statutes determined that controversy in favor of the mortgagee.^'' As to Other than Purchase-money Mortgagees. But as to all others besides the purchase-money mortgagees the wife has title of dower,^" and if the mortgagees enter the wife may redeem.^'^ The purchase-money mortgage need not, under this section, necessarily be given to the vendor, but is valid in the hands of a third person furnishing the consideration.^^ If the foreclosure is by suit, and 1'' Repealed, chap. S47> Laws of Paige, 49 ; House v. House, id. 158 ; 1896. Mills V. Van Voorhies, 20 N. Y. 412; 18 Revisers' note to I R. S. 740, McMichael v. Russell, 68 App. Div. § S- 104- 19 Mills V. Van Voorhies. 20 N. Y. 22 Kittle v. Van Dyck, i Sandf. Ch. 412. 76; Boies V. Benham, 127 N. Y. 620, 20 Bell V. Mayor of New York, 10 624; Sheldon v. Hoffnagle, 51 Hun, Paige, 49; De Lisle v. Herbs, 25 478; Taggart v. Rogers, 49 id. 265, Hun, 485 ; but not over vendor's lien, 34 N. Y. St. Rep. 942 ; Campbell v. vide infra, next page. EUwanger, 81 Hun, 259. 21 Bell V. Mayor of New York, 10 Dower in Lands Mortgaged for Purchase Money. 571 the wife is not made party, she may redeem after decree, her right in the equity of redemption not being afifected.^^ Where the fore- closure and sale are statutory under a power of sale contained in a purchase-money mortgage, the right of dower of the wife, who was not a party to the mortgage, is barred.^* Dower Subject to Vendor's Lien. The widow of a purchaser takes her dower in the land subject to the equitable lien of the vendor for unpaid purchase money,^ and this lien may be enforced in favor of third persons.^^ Dower in Surplus Moneys. The wife has dower in the surplus moneys arising on sale under such a purchase-money mortgage, even as against husband's creditors.^'' But she can demand only that one-third thereof be invested during the joint lives of her hus- band and herself and her own life if she survive. In case she survive she is entitled to the income. There is no provision of law entitling her to the payment of a gross sum in her husband's life- time.^* 23 Mills V. Van Voorhies, 20 N. Y. 27 § 174^ The Real Prop. Law ; Var- 412. tie V. Underwood, 18 Barb. 561 ; Den- 2* Brackett v. Baum, 30 N. Y. 8. ton v. Nanny, 8 id. 618 ; Blydenburgh Cf. Revisers' note to i R. S. 741, § 6. v. Northrop, 13 How. Pr. 289; Mat- 25 Warner v. Van Alstyne, 3 Paige, thews v. Duryee, 45 Barb. 6g. 513; cited Chase v. Peck, 21 N. Y. 28 Citizens' Savings Bank v. Mooney, 581, 584. Cf. Dodge V. Manning, 19 26 Misc. Rep. 67; Emigrant Indus. App. Div. 29. Savings Bank v. Regan, 41 App. Div. 26 McWhorter v. Stewart, 39 App. 523. Div. 212. 572 Dower in Surplus Money. § 174. Surplus of proceeds of sale under purchase-money mort- gages — Where, in a case specified in the last section, the mortgagee, or a person claiming under him, causes the land mortgaged to be sold, after the death of the husband, either under a power of sale contained in the mortgage, or by virtue of a judgment in an action to foreclose the mortgage, and any surplus remains, after payment of the money due on the mortgage and the costs and charges of the sale, the widow is nevertheless entitled to the interest or income of one-third part of the surplus for her life, as her dower. Formerly i Revised Statutes, 741, section 6: § 6. Where, in such case, the mortgagee, or those claiming under him, shall, after the death of the husband of such widow, cause the land mort- gaged to be sold, either under a power of sale contained in the mortgage, or by virtue of the decree of a court of equity, and any surplus shall remain, after payment of the monies due on such mortgage and the costs and charges of the sale, such widow shall nevertheless be entitled to the interest or income of the one-third part of such surplus, for her life, as her dower.29 Reason of this Enactment. The original revisers say that the rule stated in this section prevailed in Chancery, but not when the sale was under a power, although the equity was the same.^" Since the Revised Statutes, this divergence is reconciled, and no matter in which way the surplus arises, the widow is endowed.^^ The section applies only to a sale after the death of the husband, and not a sale in the lifetime of the husband. ^^ In Brackett v. Baum it is said: This section " contains no express declaration that the sale under the power shall bar the dower of the wife, even in the case men- tioned; but the plain import of the language is to assume that such would be the effect of the sale." The section immediately preced- ing, " provides that when the mortgage is given by the husband for purchase money, the widow shall not be entitled to dower in the land as against the mortgagee and those claiming under him, 29 Repealed, chap. 547, Laws of Matthews v. Duryee,- 45 id. 69 ; Bly- 1896. denburgh v. Northrop, 31 How. Pr. 30 Revisers' note to i R. S. 741, § 6. 289. 31 Denton v. Nanny, 8 Barb. 618; 32 Brackett v. Baum, 50 N. Y. 8, 11. Vartie v. Underwood, 18 id. 561 ; Dower in Surplus Money. 573 ' ■'• * though she shall not have united in the mortgage." But no provision is made for the case of a sale in the lifetime of the husband. It was, however, held that a statutory foreclosure and sale under a power of sale, contained in a purchase-money mort- gage, bars the right of dower of the wife of the mortgagor, when not a party to the mortgage.^^ 33 Brackett v. Baum, 50 N. Y. 8, 11. 574 Widow of Mortgagee Not Endowed. § 175. Widow of mortgagee not endowed.— A widow shall not be endowed of the lands conveyed to her husband by way of mortgage, unless he acquires an absolute estate therein, during the marriage. F.ormerly i Revised Statutes, 741, section 7 : § 7. A widow shall not be endowed of lands conveyed to her husband by way of mortgage, unless he acquire an absolute estate therein, during the marriage.^* Keason for Section 175. When this original section was drawn, it had been finally decided in New York that in both law and equity a mortgage was a mere security, and that even after default the mortgagee had not the legal estate, but a mere chattel interest. ^^ As a mortgagor's widow had dower in the equity of redemption and the mortgagee's interest was only a chattel, the wisdom of this provision of the statute has never been questioned. Mortgagee in Possession. Even where the mortgagee takes posses- sion and then dies, such possession is but an incident and part of the security.^" Such a possession cannot be said to be a " seisin " of the husband which entitles the widow to dower, within the exist- ing law of dower. When the Legislature took away the remedy of ejectment from a mortgagee, they probably intended to sweep away the only remaining vestige of the common law which re- garded a mortgage of a freehold as a conveyance.^'^ The intention being that a mortgage in this State should be a security and not a conveyance, it is difficult to perceive why the possession of the mortgagee should better the widow's claim to dower in the freehold. Of course, if a husband acquire the legal title of the mortgagor at any time, then the estate is absolute, so as to entitle the wife to her claim of dower. 3* Repealed, chap. 547, Laws of 7 id. 278; Runyan v. Mersereau, Jr., 1896. II id. 534; Coles v. Coles, 15 id. 319. 35 Revisers' note to i R. S. 741, § 7, 36 Kortright v. Cady, 21 N. Y. 343, citing Jackson ex dem., etc. v. Wil- 364, 365. lard, 4 Johns. 41 ; Collins v. Torrey, 37 Kortright v. Cady, id., supra. When Dower Barred by Misconduct. 575 § 1 76. When dower barred by misconduct. — In case of a di- vorce, dissolving the marriage contract for the misconduct of the wife, she shall not be endowed. Formerly i Revised Statutes, 741, section 8: § 8. In case of divorce, dissolving the marriage contract, for the miscon- duct of the wife, she shall not be endowed.38 History of this Provision. By the Statute of Westminster 11,^^ if a wife abandoned her husband and lived with her adulterer she was barred of her dower if convict, except her husband reconciled her.*" So, if she were ravished and after such rape consented to the rav- isher, she lost her dower, and after the death of the husband, his heir might enter.*^ Both these ancient acts extended to the prov- ince of New York, and after independence were re-enacted among those laws of the province or England continued here by force of the Constitution.*^ But otherwise than as specified in those acts adultery was not a bar of dower, unless followed by a divorce a vinculo matrimonii.^ Such divorces were granted in England origi- nally by act of Parliament only.** Divorces in New York. It has been held judicially, although denied historically, that divorces a vinculo matrimonii could not be granted by any authority in the province of New York.*^ Nor could they be granted in the State prior to the year 1787, when an act allow- ing divorces in cases of adultery was passed.*® Yet, as it has been said, in conformity with Dutch law, divorces a vinculo matrimonii were at first granted in the province of New York.*'' But be that as it may, after the act of 1787, all divorces a vinculo matrimonii 38 Repealed, chap. 547, Laws of at p. 194 ; Co. Litt. 32a, and Mr. 1896. Hargrave's note, 194. 39 13 Edw. I, chap. 34; 2 Inst. 433. ■** i Black. Comm. 441. ** Reynolds v. Reynolds, 24 Wend. *5 Forrest v. Forrest, 25 N. Y. 501, 193. The act 13 Edw. I, chap. 34, 506; Griffin v. Griffin, 47 id. 134, 138. seems to have been re-enacted in the *6 2 J. & V. 133 ; i K. & R. 93 ; i R. Duke of York's Laws for New York L. 197; Erkenbach v. Erkenbach, 96 in 1665, title " Dowryes." N. Y. 456 ; Goodsell v. Goodsell, 82 *i 6 Rich. II, Stat, i, chap. 6. App. Div. 65, 68, and cases there *2 Const, of 1777, § 35 ; 2 J. & V. cited. 4; I K. & R. 51; I R. L. 56. « Record of N. Y. Court of As- *3 Reynolds v. Reynolds, 24 Wend, sizes, 316, 318, 319, 519; Burtis v. Burtis, Hopk. 557, 563. 576 When Dower Barred by Misconduct. w,ere referred by the courts to the authority of that act,*® and it was even denied that the ecclesiastical jurisdiction, to grant limited divorces, or divorces a mensa et thoro, or to dissolve a marriage by reason of a canonical disability, existed here at all.*^ But in 1824 an act was passed permitting Hmited divorces in certain cases.®" Annulment of Marriage. There is, however, a jurisdiction in the State courts independent of statute, to declare a marriage void ah initio for fraud or lunacy." But the sentence in the last class of cases is not a divorce, but that there was no marriage between the parties, and, therefore, the maxim, " Ubi nullum matrimonium ibi nulla dos," applies in all such cases, and there is no dower because no marriage.®" The Code now regulates actions for annulment of marriage,®^ and the rights of the issue are preserved by statute.®* Dower not Barred by Wife's Misconduct, but by Sentence against Her. Since the repeal of the EngUsh Statutes and the adoption of the Revised Statutes in 1830, adultery, the wife's abandonment of the husband and her living with the adulterer, or her consent to the ravisher after a rape, do not forfeit dower, unless the woman has been divorced therefor, by a decree of divorce a vinculo matri- monii; the former laws to the contrary being repealed.®® The ac- tion for a divorce is now wholly regulated by statute in New York,®® and, in order to bar dower, the divorce must be a divorce 48Erkeiibach v. Erkenbach, g6 N. ^^Vrizt v. Price, 124 N. Y. 589; Y. 456; Griffin v. Griffin, 47 id. 134, § 1754, Code Civ. Proc; §§ 3, 4, The 138; Forrest v. Forrest, 25 id. 501, Domestic Relations Law; §§ 1742, 506; Wood v. Wood, 61 App. Div. 1743, Code Civ. Proc. Cf. Glenn v, g6, 98. Glenn, 70 App. Div. 576; Di Lorenzo 49Burtis V. Burtis, Hopk. SS7; v. Di Lorenzo, 71 id. 509, 174 N. Y. Perry v. Perry, 2 Paige, 501 ; Jones 467. V. Jones, 90 Hun, 414. Cf. Camp- ^3 §§ 1742-1735, Code Civ. Proc. bell V. Crampton, 8 Abb. N. C. 363- ®* Chap. 225, Laws of 1903; § 1749, BO Chap. 20s, Laws of 1824 ; Perry Code Civ. Proc. V. Perry, 2 Barb. Ch. 311; Perry v. ®® i R. S. 741, § 8; 2 id. 146, § 48; Perry, 2 Paige, 501. Cf. Code Civ. Reynolds v. Reynolds, 24 Wend. 193 ; Proc, §§ 1762, 1767. Pitts V. Pitts, 52 N. Y. 593; Schiffer 51' Griffin v. Griffin, 47 N. Y. at p. v. Pruden, 64 id. 47, 49 ; Van Cleaf v. 138; Weightman v. Weightman, 4 Burns, 118 id. 549; Cooper v. Whit- Johns. Ch. 343; Ferlat v. Gojon, ney, 3 Hill, 95. Hopk. 478 ; Di Lorenzo v. Di Lorenzo, 56 Code Civ. Proc, chap. XV, art. 71 App. Div. 509; revd., 174 N. Y. 11, §§ 1756-1761. 467; Svenson v. Svenson, 178 id. 54. When Dower Barred by Misconduct. 577 a vinculo matrimonii, and on the statutory ground.^^ When the woman forfeits dower, she forfeits all other pecuniary provisions made for her in lieu of dower.**® Husband's Misconduct. A divorce a vinculo matrimonii, granted the wife for misconduct of the husband, does not forfeit the wife's title of dower,^* even if she marry again.®** Such divorce is only prospective in operation. Thereafter she has no title or interest in subsequently acquired property of the quondam husband.*^ Limited Divorce. A divorce a mcnsa et thoro does not forfeit any right of property arising through the conjugal relation.®^ Wife's Absence, Effect of. While a wife's continuous absence for five years, without her husband's knowledge of her being alive, may prevent his second marriage from being bigamy,®* yet such second marriage does not deprive the wife of dower, or entitle the woman last married to dower, though she entered into the sup- posed marriage relation in entire good faith.®* Effect of Divorce on Wife's Separate Property in Former Husband's Hands. A divorce a vinculo matrimonii, obtained by the wife, has no efifect upon her estate or property left in his hands by her. They continue her sole estate.®^ So, where husband and wife hold as tenants by entireties, and are divorced a vinculo matrimonii, the tenancy is severed; each takes a proportionate share of the prop- erty as a tenant in common.®® Effect of Divorce by Courts of Other States for Causes not Allowed Here. A divorce a vinculo matrimonii, granted to the husband by 5T Pitts V. Pitts, S2 N. Y. S93 ; Code ^i Nichols v. Park, 78 App. Div. 94. Civ. Proc, §§ 1756, 1760; Van Cleaf «2 Q^y y West, 2 Edw. Ch. 592; v. Burns, 133 N. Y. 540; 2 R. S. 146, Starbuck v. Starbuck, 62 App. Div. § 48; Day v. West, 2 Edw. Ch. 592; 437. Cf. Smith v. Terry, 38 App. Div. Starbuck v. Starbuck, 62 App. Div. 394 on effect of resumption of marital 437. relations. 58 § 182, The Real Prop. Law. «3 2 R. S. 687, § 9 ; Penal Code, 59 § 1759, Code Civ. Proc; Wait v. § 299; and see history of these laws. Wait, 4 N. Y. 95 ; Price v. Price, 124 124 N. Y. at p. 596. id. 589, 599. Cf. Barrett v. Failing, 64 price v. Price, 124 N. Y. 589 ; III U. S. 523, 525; and as to person- Spies v. Spies, 16 Abb. Pr. (N. S.) alty, see Matter of Ensign, 103 N. Y. 112; Rundle v. Van Inwegan, 9 Civ. 284. Proc. 328. eoVoorhis v. Brintnall, 23 Hun, 65 2 R. S. 146, § 46; 2 R. L. 199, 264; revd., on other ground, 86 N. Y. § 6. 18. 66 Stetz v. Shreck, 128 N. Y. 263. 37 578 When Dower Barred by Misconduct. the courts of another State for a cause not regarded as adequate by the laws of this State, will not deprive the wife of her dower in this State.®'' But if the decree is obtained for such cause at the suit and instance of the wife, it may operate as against herself to bar her dower.®* Effect of Foreign Divorce without Service or Appearance. A divorce ren- dered in another State against a resident of this State, where there was" no personal service, and no personal appearance within the State rendering it, is void in this State.®^ "■'Van Cleaf v. Burns, ii8 N. Y. 69 Williams v. Williams, 130 N. Y. 549 ; 133 id. 540. Cf. Barrett v. Fail- 193 ; Bell v. Bell, 4 App. Div. 527 ; ing, III U. S. 523; Denick v. Denick, People v. Karlsioe, i id. 571; 30 Am. 92 Hun, 161 ; Campbell v. Campbell, Law Review, 612 ; McGown v. Mc- 90 id. 233; Atherton v. Atherton, 181 Gown, 19 App. Div. 368; Bell v. Bell, U. S. 15s. 181 U. S. 175 ; Streitwolf v. Streit- 68 Starbuck v. Starbuck, 173 N. Y. wolf, 181 U. S. 179; Andrews v. 503. Andrews, 188 U. S. 14. When Dower Barred by Jointure. 579 § 177. When dower barred by jointure — Where an estate in real property is conveyed to a person and his intended wife, or to the intended wife alone, or to a person in trust for them or for the intended wife alone, for the purpose of creating a jointure for her, and with her assent, the jointure bars her right or claim of dower in all the lands of the husband. The assent of the wife to such a jointure is evidenced, if she be of full age, by her becoming a party to the conveyance by which it is settled ; if she be a minor, by her joining with her father or guardian in that con- veyance. Formerly i Revised Statutes, 741, sections 9, 10: § 9. Whenever an estate in lands shall be conveyed to a person and his intended wife, or to such intended wife alone, or to any person in trust for such person and his intended wife, or in trust for such wife alone, for the purpose of creating a jointure for such intended wife, and with her assent, such jointure shall be a bar to any right or claim of dower of such wife, in any lands of the husband.™ § 10. The assent of the wife to such jointure shall be evidenced, if she be of full age, by her becoming a party to the conveyance by which it shall be settled ; if she be an infant, by her joining with her father or guardian in such conveyance.^! Common Law. At common law, as no right could be barred till it accrued, and no right to an estate of freehold could be barred by a collateral satisfaction, it was impossible to bar dower by any assurance either before or during marriage.''^ To avoid this conse- quence, estates were commonly conveyed to uses, a widow not being dowable of a use.''^ Jointure. It was a common practice before the Statute of Uses (27 Henry VIII) to provide for the wife by a settlement or by an estate held to the joint use of herself and husband. When the Statute of Uses fastened the legal estate to the use, the effect of such union would have been to endow the wife of all the husband's estate, leaving her also her separate provision, had the 6th section of that statute not taken this fact into consideration, and provided that where a " jointure " was made she should not claim or have ™ Repealed, chap. 547, Laws of '2 Cruise, Dig., tit. 7, chap, i, § i. 1896. ''^ Atherly, Marriage Settlements, ''I Repealedi, chap. 547, Laws of 501, and see Sugden's note to Gilbert 1896. on Uses (Lond. ed. of 1811), 321. 580 When Dower Barred by Jointure. title to dower J* From this statute arose the modern " jointure." '^^ But as the statute was in derogation of the common law it was construed strictly, and, as Lord Coke stated, to bar a wife's dower by a jointure five facts must concur: (i) The jointure must take effect immediately on the husband's death. (2) It must be an es- tate for her life or a greater estate. (3) It must be made to her and not in trust for her. (4) It must be in satisfaction of the whole dower and not of a part. (5) It must be averred to be in satisfac- tion of dower. It might be made either before or after marriage.^'' In the construction of the Statute of Wills, courts of law regulated their decisions in reference to the widow's title to dower upon the validity of jointures. As to time of commencement, certainty, interest, etc., they have required the jointure to be as beneficial to the widow as her dower. If this object was effected, the jointure might be limited by any conveyance, though the statute expressly mentioned five forms: (i) To the husband and wife and to the heirs of the husband; (2) to the husband and wife and to the heirs of their two bodies; (3) to the husband and wife and to the heirs of the body of one of them; (4) to the husband and wife for lives; (S) to the husband and wife for the life o'f the wife." The intend- ing wife's assent was not necessary to a legal jointure, if it corre- sponded with the requirements denoted.'^* But if the settlement was made after marriage, the jointure might be refused by the wife on the death of the husband, unless it was made by act of Parlia- ment.''® "Jointure" in New York. The Statute of Uses being in force in the province of New York was adopted by the first State Constitu- tion,*" and in 1787 it was revised among the English statutes ex- tending here, and re-enacted as a statute of the State.*^ The 6th and 9th sections of the English Statute of Uses were, however, in New York then placed in a separate " act concerning dower." *^ As thus re-enacted, these provisions of the Statute of Uses re- ceived the same construction accorded them in England, and a T*27 Henry VIII, chap. 10. so Const, of 1777, § 35. 75 I Roper, Husb. & W. 462. 8I 2 J. & V. 68; i K. & R. 66; i R. ■^8 Co. Litt. 36b. L. 72 ; 4 Kent, Coram. 56. " I Roper, Husb. & W. 463. ^^ 2 J. & V. 4, §§ 8, 9 1 1 K. & R. 51 ; 78 Vide infra. i R. L. 56 ; McCartee v. Teller, 8 7927 Hen. VIII, chap. 10, § 9. Wend, at p. 275. When Dower Barred by Jointure. 581 jointure barred dower here, as there.*^ Before the Revised Statutes the assent of the intending wife was not necessary to a legal joint- ure to bar dower. The legal jointure then derived its efifect from the Statute of Uses.** The Revised Statutes. The Revised Statutes and the repeal of the old Statutes of Uses and Dower made the actual assent of the in- tending wife or her guardian or parent necessary to both a legal and equitable jointure, or ante-nuptial settlement, to bar dower,*^ and The Real Property Law makes no change in this respect.*^ Contracts before Marriage. Contracts made between intending spouses before marriage now remain in full force after their marriage.*^ Infant Female's Assent. The provision of the statute, that an infant female's assent should be made by her joining with her father or guardian, was not entirely new, as it was thought that a legal or equitable jointure should be on notice to these same persons, in order to bind an infant at a time when the intending wife's assent was not deemed necessary to a valid jointure.** Without the as- sent of parent or guardian an infant may not now bar her dower.*^ ^ McCartee v. Teller, 2 Paige, 511; 54 N. Y. 437, 442; Matter of Young affd., 8 Wend. 267; Swaine v. Per- v. Hicks, 92 id. 235; Goldstein v. rine, 5 Johns. Ch. 482. Goldstein, 35 Misc. Rep. 271. 84 27 Hen. VIII, chap. 10, § 6 ; i ** Cruise, Dig., tit. 7, chap, i, § 38 ; Roper, Husb. & W. 475; i R. L. 56; Drury v. Drury, 2 Eden, 65, 66; i McCartee v. Teller, 2 Paige, 511, 559; Roper, Husb. & W. 486, note, aflfd., 8 Wend. 267; 4 Kent, Comm. *9 Cunningham v. Knight, i Barb. 55 ; Cruise, Dig., tit. 7, chap, i, § 37. 399. See as to ante-nuptial settle- *^ I R. S. 741, §§ 9, ID. ment by infant of her own estate: ^^ Supra, §§ 177 and infra 179, The Bool v. Mix, 17 Wend. 119; Temple Real Prop. Law. v. Hawley, i Sandf. Ch. 153; Strong 87 Chap. 375, Laws of 1849 ; now v. Wilkins, i Barb. Ch. 9 ; Wetmore § 23, The Domestic Relations Law; v. Kissam, 3 Bosw. 334; Mcllvaine v. chap. 48, General Laws, being chap. Kadel, 30 How. Pr. 193. 272, Laws of 1896 ; Wright v. Wright, 582 When Dower Barred by Pecuniary Provision. § 178. When dower barred by pecuniary provisions. — Any pecuniary provision, made for the benefit of an intended wife and in lieu of dower, if assented to by her as pre- scribed in the last section, bars her right or claim of dower in all the lands of her husband. Formerly i Revised Statutes, 741, section 11: § II. Any pecuniary provision that shall be made for the benefit of an intended wife and in lieu of dower, shall, if assented to by such intended wife, as above provided, be a bar to any right or claim of dower of such wife in all the lands of her husband.^o Ante-nuptial Provision Bars Dower. The 6th section of the English Statute of Uses,^^ which was re-enacted in the 8th section of the original New York " Statute on Dower," ®^ provided for legal jointures as stated in the remarks on the last preceding section."^ With the growth of equity jurisprudence, the intending wife might be barred of her dower in equity by an ante-nuptial settle- ment, and the provision thus made was called an " equitable joint- ure " and operated as an " equitable bar " to dower,®* although an equitable jointure never barred "dower" at law; the bar was en- forced only in equity, and if the wife were evicted of her equitable jointure, equity would not interfere to deprive her of her dower.^ The original revisers of the New York statutes, taking equitable bars into consideration, made any pecuniary provision, duly as- sented to by the intending wife, a bar to dower both at law and in equity.®" Amount of the Provision. Prior to the Revised Statutes there was much uncertainty as to the amount of the property necessary to satisfy the Statute of Uses and operate as a legal jointure ; es- pecially in the case of an infant wife whose assent could hardly be presumed,®^ even if a wife's consent was ever necessary under the ®o Repealed, chap. 547, Laws of Swaine v. Perrine, S Johns. Ch. 482, 1896. 489. 91 27 Hen. VIII, chap. 10. ^ Revisers' note to i R. S. 741, 92 2 J. & V. 4; I K. &R. si; I R. L. § 11, and i R. S. 741, § 12, now 56. §§ 178, 179, The Real Prop. Law. 93 § 177, The Real Prop. Law, 9'' See notes to i Roper, Husb. & supra, pp. S79, S8o. W. 462, 479. But if the jointure was 94 Lord Hardwicke, in Hervey v. illusory or fraudulent, equity would Hervey, l Atk. 562, 563; 4 Kent, relieve against it. Wilmot's Opins. Comm. 55. 194; Cruise, Dig., tit. 7, chap, i, § 38; 95 I Roper, Husb. & W. 486; Ath- 3 Atk. 312. erly, Marriage Settlements, 553. Cf. When Dower Barred by Pecuniary Provision. 583 Statute of Uses, as was denied.®^ The revisers in New York care- fully provided for the intending wife's assent, but left the amount of the provision to bar dower to the agreement of the parties.*^ Nature of the Agreement to Bar Dower. The precise nature of the agreement necessary to bar dower should always be considered.^ The consideration need not now be made for the wife's benefit, through the medium of a trustee ; as, since the " Married Women's Acts," the wife retains the custody and the dominion over her sepa- rate estate, and, therefore, the executed consideration of the ante- nuptial agreement remains hers after marriage and does not be- come the husband's again when the marriage takes place.^ While such an agreement between intending spoUses will now be sus- tained, if fairly made,^ yet from the confidential relations of the parties it will be regarded with the most rigid scrutiny.* The agreement must be in writing.^ It should be founded on some pe- cuniary provision for the benefit of the intended wife,^ and be made by her with full knowledge of the surrounding circumstances. "^ It is safer that the intending wife should have independent legal ad- vice.* The agreement should expressly state that the pecuniary provision for her is in lieu of, and in satisfaction of, all her claim and title to dower." It should be specific in its description of the estate affected, if it is intended to secure the consideration by a charge or lien.''* 98 Drury v. Drury, in the House of ter, 40 Hun, 263 ; and see Matter of Lords, reported at the end of Mc- Benson, 96 N. Y. 499, 507; Matter of Cartee v. Teller, 8 Wend. 267, 297. Stilson, 85 App. Div. 132. 99 I R. S. 741, §§ 10, II, now §§ 177, 4 Pierce v. Pierce, 71 N. Y. 154; 178, The Real Prop. Law. See Re- Graham v. Graham, 143 id. 573. visers' note, i R. S. 741, § 11, and 5§ 207, The Real Prop. Law. See Lewis V. Smith, 9 N. Y. at p. 511, on as to oral equitable agreements in a kindred point. equity actions, Lowry v. Smith, 9 1 Cf. Wadhams v. Amer. Home Hun, 514. Miss. Soc, 12 N. Y. at p. 422 ; Dil- « Graham v. Graham, 143 N. Y. 573, laye V. Greenough, 4S id. 438; Matter 580; s. c, 67 Hun, 329; Grain v. of Benson, 96 id. 499, 507. Cavana, 36 Barb. 410; s. c, 62 id. 109. 2 See the Married Women's Acts, ^ Graham v. Graham, 143 N. Y. 573. note 57, p. 490, supra, and Wood v. 8 Graham v. Graham, 143 N. Y. at Wood, 83 N. Y. 575; Jones v. Flem- p. 577; Crousque v. Quinn. 14 Abb. ing, 104 id. 418, 431, and §§ 20, 21, N. C. 9, 11; Hays v. Union Trust 26, The Domestic Relations Law. Co., 27 Misc. Rep. 240. 3 Matter of Young v. Hicks, 92 N. » Sheldon v. Bliss, 8 N. Y. 31 ; Gray Y. 235. See the agreement set out in v. Gray, 5 App. Div. 132. this case and in Carpenter v. Carpen- i" Mundy v. Munson, 40 Hun, 304. 584 When Widow to Elect between Jointure and Dower. § 179. When widow to elect between jointure and dower. — If, before the marriage, but without her assent, or, if after the tnarriage, real property is given or assured for the jointure of a wife, or a pecuniary provision is made for her, in Heu of dower, she must make her election whether she will take the jointure or pecuniary provision, or be endowed of the lands of her husband; but she is not en- titled to both. Formerly i Revised Statutes, 741, section 12: § 12. If before her coverture, but without her assent, or if after her coverture, lands shall be given or assured for the jointure of a wife, or a pecuniary provision be made for her, in lieu of dower, she shall make her election whether she will take such jointure or pecuniary provision, or whether she will be endowed of the lands of her husband, but she shall not be entitled to both.n Comment on Section 179, Supra. Under the preceding sections^^ of this act it has been stated that the consent of the intending wife was not necessary, before the Revised Statutes, to the validity of a legal jointure,^^ and that as to a post-nuptial settlement the wife might, at her husband's death, elect, under the Statute of Uses, to take her dower instead of the provisions thus made for her." The Revised Statutes made the assent of the intending wife neces- sary to a jointure to bar dower,^^ and reserved the wife's right of election to reject the settlement and take her dower when the settlement was a post-nuptial one.^" Post-nuptial Settlements to Bar Dower. Prior to the Married Wo- men's Acts, the wife was incompetent to release her dower to her husband. 1'' But the " Married Women's Acts " came after the Re- 11 Repealed, chap. 547, Laws of Fleming, 104 N. Y. 418, 430, 432 ; 1896. Grain v. Cavana, 36 Barb. 410; Guidet 12 §§ 177, 178, The Real Prop. Law. v. Brown, 3 Abb. N. C. 295. ^^ Supra, p. 581. "Grain v. Gavana, 36 Barb. 410; 1*27 Hen. VIII, chap. 10, § 9; i s. c, 62 id. 109; except in partition R. L. 56, § 9; McCartee v. Teller, 8 cases. Vide chap. 177, Laws of 1840, Wend, at p. 275. p. 128; chap. 472, Laws of 1880; ^^ Supra, I R. S. 741, §§ 10, 11, 12, §1571, Gode Giv. Proc. ; §§21, 26, The and id. 742, § 16; now §§ 177, 178, 179 Domestic Relations Law. Cf. Wight- and 183, The Real Prop. Law. man v. Schliefer, 45 N. Y. St. Rep. 18 Supra, I R. S. 741, § 12 ; now 698. § 179, The Real Prop. Law; Jones v. When Widow to Elect between Jointure and Dower. 585 vised Statutes, and tended to place a married woman in a legal situation where she might contract even with her husband, and it is said thus agree to bar her dower by a proper post-nuptial settle- ment.^^ The present re-enactment of the Revised Statutes, it will be observed, is posterior in point of time to the Married Women's Acts, and this section now under consideration'® re-enacts again the provisions of section 12 of the Revised Statutes.^" This law^' is, however, to be read in connection with The Domestic Relations Law,^^ as they are part of the same statutory revision. Whether or not a feme covert may now irrevocably bar dower by a post- nuptial settlement, it is certain that whenever she retains the con- sideration of such settlement it must remain an equitable bar to dower, if so agreed, and disentitles her to an election, at least until such consideration is restored.^^ But a wife's mere release of dower to the husband direct, is not a proper bar to her dower.^* Intending Wife's Assent to Bar Dower. Although an intended wife's assent was not necessary to a legal jointure, there were, before the Revised Statutes, equitable jointures which, however, required the assent of the intending wife before they became valid bars in equity to dower .^' Indeed the uncertainty of legal jointures made without the assent of the intending wife, long anterior to the Revised Statutes, caused most ante-nuptial provisions for married women to take the form of trust settlements, which, if they also involved the IS Chap. 537, Laws of 1887; §§ 21, § 179, The Real Prop. Law. Cf. 26, The Domestic Relations Law; Townsend v. Townsend, 2 Sandf. 711 ; Jones V. Fleming, 104 N. Y. at pp. Hendricks v. Isaacs, 117 N. Y. 411; 433. 434; Doremus v. Dorenuis, Ci6 Dworsky v. Arndtstein, 29 App. Div. Hun, III; Huff v. Wheeler, 27 Misc. 274. See also under § 183, infra, how Rep. 763; Dworsky v. Arndtstein, 29 wife may bar her inchoate title of App. Div. 274. Cf. Hendricks v. dower. Lsaacs, 117 N. Y. 411; Townsend v. 24 Nightman v. Schliefer, 45 N. Y. Townsend, 2 Sandf. 711; Witthaus v. St. Rep. 698; s. c, 18 N. Y. Supp. Schack, 105 N. Y. 332. 551; Hendricks v. Isaacs. 117 N. Y. i** § 179, The Real Prop. Law. 411 ; Townsend v. Townsend, 2 Sandf. 29 I R. S. 741, § 12. 711; Witthaus v. Schack, lo.i; N. Y. 21 The Real Prop. Law. 332 ; Huff v. Wheeler, 27 Misc. Rep. 22 Chap. 48, General Laws. 763. Cf. chap. 594, Laws of 1893 ; 23 Jones V. Fleming, 104 N. Y. 430, §§21 and 26, The Domestic Relations 433; Doremus v. Doremus, 66 Hun, Law. iii; Wood V. Seely, 32 N. Y. 105; 26 Cmise, Dig., tit. 7, chap, i, § 38; Lee V. Timken, 10 App. Div. 213 ; Drury v. Drury, 2 Eden, 65, 66. 586 When Widow to Elect between Jointure and Dower. woman's separate property, were necessarily executed by her, and at the same time she often formally accepted the provision in lieu and satisfaction of dower. If she was an infant, the provision to bar dower required the assent of parent or guardian.^® The origi- nal revisers, by providing that the assent of the intending wife should be necessary to any settlement to bar dower, followed the equitable rather than the legal rule regarding jointures to bar dower. Infant Wife. A post-nuptial settlement on an infant wife is sub- ject to her election and a fortiori does not bar her dower under this section,^'' or on general principles of law relating to infants.^ 26 Lord Hardwicke, in Drury v. 289, 14 N. Y. St. Rep. 369 ; Sandf ord Drury, 2 Eden, 65, 66. v. McLean, i Sandf. Ch. 117; Cun- 2^ § 179, supra. ningham v. Knight, i Barb. 399. 28 Mclntyre v. Costello, 47 Hun, Election between Devise and Dower. 587 § 1 80. Election between devise and dower. — If real property is devised to a woman, or a pecuniary or other provision is made for her by will in lieu of her dower, she must make her election whether she will take the property so devised, or the provision so made, or be endowed of the lands of her husband; but she is not entitled to both. Formerly i Revised Statutes, 741, section 13 : § 13. If lands be devised to a woman, or a pecuniary or other provision be made for her by will, in lieu of her dower, she shall make her election whether she will take the lands so devised, or the provision so made, or whether she will be endowed of the lands of her husband.^s Note on i Revised Statutes, 741, Section 13 — Section 13, i Revised Stat- utes, 741, was amended by chapter 171, Laws of 1895 ; such amendment to take effect on the ist day of January, 1896. But the original section was restored by the repeal of chapter 171, Laws of 1895, on June 14, 1895 (Chap. 1022, Laws of 1895). Dower in Exchanged Lands. We have seen that at common law a widow was put to her election in respect of lands exchanged by her husband, and that she could not have dower in both parcels.^" Doctrine of Election between Devise and Dower. The doctrine of elec- tion between devise and dower did not, however, grow out of the rule concerning dower in exchanged lands. The provision of the Statute of Uses relating to post-nuptial settlements was broad enough to cover devises of lands in satisfaction of dower,^^ al- though the Statute of Wills was enacted subsequently.^^ The Statute of Uses provided that a surviving wife might, at her hus- band's death, elect to take either a provision made for her or her dower, and such a provision might, after the Statute of Wills, be made by will. Courts of equity then put her to her election.^^ The doctrine of election between devise and dower was founded on the principle that a person shall not be permitted to claim under any instrument, whether it be a will or a deed, without giving full effect to it in every respect, so far as such person is concerned.^* But 29 Repealed, chap. 547, Laws of 33 Co. Litt. 36b ; Larrabee v. Van 1896. Alstyne, I Johns. 307. ^0 Supra, under § 171, The Real 3* i Roper, Husb. & W. 565, s66; Prop. Law; Co. Litt 31b. Bretson v. Stoops, 91 App. Div. 185, 31 27 Hen. Vin, chap. 10, § 9. 189. 3232 Hen. Vin, chap, i; 34 & 35 id. chap. 5. 588 Election between Devise and Dower. all the old cases, English and American, hold that the intention to exclude dower by a devise must be demonstrated either by express words or clear and manifest intention ; so that, if there was any- thing ambiguous or doubtful, the legal right to dower prevailed, and the devise was additional to dower and not in lieu of it.^^ The Revised Statutes. The Revised Statutes simply adopted the equitable principles of election indicated, and made the widow's acceptance of a provision, given her in lieu of dower, a bar both at law and in equity;*^ although such acceptance was thought, before the Revised Statutes, to be a legal as well as an equitable bar.^''^ But the intention to exclude dower by devise must be clear, or else the legal right to dower prevails as before the Re- vised Statutes.^* Construction of Devise which Puts Widow to Her Election. The inten- tion to exclude dower need not be express; it may be manifested by a provision wholly inconsistent with the right to dower; and in such cases the widow will be put to her election. She cannot have both.^® But it has been frequently held that a devise of all testa- tor's lands, with peremptory powers of sale or trust for sale is not inconsistent with a right to dower; the trustees take the lands with 35 Larrabee v. Van Alstyne, I Johns. Kimbel v. Kimbel, 14 App. Div. 570, 307 ; Adsit V. Adsit, 2 Johns. Ch. 448 ; 572 ; Matter of Smith, i Misc. Rep. Smith v. Kniskern, 4 id. 9; Rathbone 269; s. c, 22 N. Y. Supp. 1067; Gray v. Dyckman, 3 Paige, g, 30; Jackson v. Gray, 5 App. Div. 132; Purdy v. v. Churchill 7 Cow. 287; Steele v. Purdy, 18 id. 310; Miller v. Miller, Fisher, i Edw. Ch. 435; Duncklee v. 22 Misc. Rep. 582; Closs v. Eldert, Butler, 30 Misc. Rep. 58; Glaser v. 30 App. Div. 338; Horstman v. Flege, Glaser, 67 App. Div. 132. 61 id. 518; affd., 172 N. Y. 381; Mat- 36 I R. S. 741, § 13 ; Lewis v. Smith, ter of Grotrian, 30 Misc. Rep. 23 ; 9 N. Y. 502, 511; Sandford v. Jack- Hopkins v. Cameron, 34 id. 688; Mat- son, 10 Paige, 266; Matter of Spear, ter of Grotrian, 35 id. 257. 90 App. Div. 564. 38 Savage v. Burnham, 17 N. Y. 37 Kennedy V. Mills, 13 Wend. 553; 561; Vernon v. Vernon, 53 id. 351; Van Orden v. Van Orden. 10 Johns. In the Matter, etc., of Zahrt, 94 id. 30. 605, 609; Konvalinka v. Schlegel, io.t ^^ Supra, p. 587; Fuller v. Yates, 8 id. 125, 129; Nelson v. Brown, 144 Paige, 32s ; Sandford v. Jackson, 10 id. 384, 391 ; Asch v. Asch, 18 Abb. id. 266; Church v. Bull, s Hill, 206; N. C. 82; s. c, 113 N. Y. 232; Jurgens affd., 2 Den. 430; Lewis v. Smith, 9 v. Rogge, 16 Misc. Rep. 100; Starr v. N. Y. 502, 512; Matter of Zahrt, 94 id. Starr, 54 Hun, 300; Hopkins v. 60s; Konvalinka v. Schlegel, 104 id. Cameron, 34 Misc. Rep. 688; Matter 12s;. Mills V. Mills, 28 Barb. 4S4; of Gordon, 172 N. Y. 25. Election between Devise and Dower. 589 all their legal incidents, including dower.^'* Nor is the fact that the provision made for the wife exceeds in value her dower right conclusive of intent to exclude dower.*"^ Widow's Provision Entitled to Preference. Where a bequest is made to a widow in lieu of dower and she accepts it, she is entitled to preference over other legatees, debts being first paid.*^ Joint Note to Husband and Wife. Where husband and wife hold at his death a note payable to the order of both, she takes the note as a gift,*^ and by reason thereof is not put to her election respect- ing her right to dower, even though the will give her certain prop- erty, real and personal, in lieu of dower.** Widow's Election in Ease of Husband's Estate. The widow's election is in ease and benefit of the testator's estate, and not for the benefit of the devisees and legatees only; it operates as a limitation to the claims of the widow, and the fact that the other devisees and lega- tees do not insist upon the bar is immaterial.*^ *" Konvalinka v. Schlegel, 104 N. *3 Sandford v. Sandford, 45 N. Y. Y. 125, 131 ; Gray v. Gray, 5 App. 723. See " Tenants by Entireties," Div. 132. And see under § 170, The p. 334. Real Prop. Law, supra, p. 566, ** Sandford v. Sandford, 58 N. Y. " dower favored." 69. *i Mills V. Mills, 28 Barb. 454; *5 Matter of Accounting of Benson, Duncklee v. Butler, 25 Misc. Rep. 96 N. Y. 499; Lee v. Tower, 124 id. 680. See again s. c, 30 id. 58. 370, 376. *2 Isenhart v. Brown, I Edw. Ch. 411. 590 When Deemed to have Elected. § i8i. When deemed to have elected. — Where a woman is entitled to an election, as prescribed in either of the last two sections, she is deemed to have elected to take the jointure, devise or pecuniary provision, unless within one year after the death of her husband she enters upon the lands assigned to her for her dower, or commences an action for her dower. But, during such period of one year after the death of her said husband, her time to make such election may be enlarged by the order of any court competent to pass on the accounts of executors, administrators or testamentary trustees, or to admeasure dower, on an affidavit showing the pendency of a pro- ceeding to contest the probate of the will containing such jointure, devise or pecuniary provision, or of an action to construe or set aside such will, or that the amount of claims against the estate of the testator can not be ascer- tained within the period so limited, or other reasonable cause, and on notice given to such persons, and in such manner, as such court may direct. Such order shall be indexed and recorded in the same manner as a notice of pendency of action in the office of the clerk of each county wherein the real property or a portion thereof affected thereby is situated. Formerly i Revised Statutes, 742, section 14: § 14. When a woman shall be entitled to an election, under either of the two last sections, she shall be deemed to have elected to take such jointure, devise or pecuniary provision, unless within one year after the death of her husband she shall enter on the lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof. This section of the Revised Statutes was amended by chapter 61, Laws of iSgo as follows: An Act to amend section fourteen of title three of chapter one of part two of the Revised Statutes, relating to estates in dower. Approved by the Governor March 22, 1890. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Section fourteen of title three of chapter one of part two of the Revised Statutes is hereby amended so as to read as follows : § 14. When a woman shall be entitled to an election, under either of the two last sections, she shall be deemed to have elected to take such jointure, devise or pecuniary provision, unless within one year after the death of her husband she shall enter on the lands to be assigned to her for her dower, When Deemed to have Elected. 59]. or commence proceedings for the recovery or assignment thereof. Where, the time within which such election may be made has begun to run and has not expired, it may be enlarged by the order of any court competent to pass upon the accounts of executors, administrators or testamentary trustees, or to admeasure dower, upon an affidavit showing the pendency of a proceed- ing to contest the probate of the will containing such jointure, devise or pecuniary provision, or of action to construe or set aside such will, or that the amount of claims against the estate of the testator can not be ascertained within the period so limited, or other reasonable cause therefor. Notice of application for such order shall be given to such persons as the court may direct. And such order when granted shall be recorded and indexed in the same manner as a notice of a pendency of action in the office of the clerk of each county wherein such lands or any part thereof are situated. § 2. This act shall take effect immediately.*^ The latter act was again amended by chapter 171, Laws of 1895, such amendment to take effect on the ist day of January, 1896; but chapter 171, Laws of 1895, was repealed before it went into effect (Chap. 1022, Laws of 1895), «^nd chapter 61, Laws of 1890,*'' restored ipsissimis verbis. Intent of Section 181, Supra. The original revisers thought it best to prescribe the mode of evincing an election between a devise and dower, and also the time in which such election should be made.*® Effect of Section 181, Supra. This section has the force of a Statute of Limitations, and bars dower after the time specified has elapsed, unless the widow meanwhile die, or has entered or commenced an action for her dower,*^ or had her time to make her election en- larged, as now prescribed in this section.^" Prior to the act of 1890, it was held that fraud might relieve a person from an agree- ment to accept a provision in lieu of dower, but could not en- large the time to make the election or bring an action for dower.^i Effect of Widow's Neglect upon Her Election. How far it is incum- bent upon the widow to make diligent effort to acquaint herself with the nature and extent of the estate before evincing her election *" Repealed, chap. 547, Laws of pending election, see Doty v. Hen- 1896. drix, 16 N. Y. Supp. 284; Flynn v. '^'^ Supra, p. 590. McDermott, 43 Misc. Rep. 513. *SNote to I R. S. 742, § 14- ^ Supra, chap. 61, Laws of 1890; *» Chamberlain v. Chamberlain, 43 now § 181, The Real Prop. Law. N. Y. 424, 441 ; In the Matter, etc., Bi Aken v. Kellogg, 16 Abb. N. C. of Zahrt, 94 id. 605, 610; Jones v. 265; s. c. above, sub nom. Akin v. Fleming, 104 id. 418, 432; Akin v. Kellogg, 39 Hun, 252, 119 N. Y. 441. Kellogg, 119 id. 441; Lee v. Timken, Cf. Hindley v. Hindley, 29 Hun, 318; 10 App. Div. 213. Where widow dies Lee v. Timken, 10 App. Div. 213. 592 When Deemed to have Elected. is not always clear ; bflt it is to be inferred that a supine reliance upon the statement of others may not defeat an election for fraud after the year has elapsed without effort to extend the time, al- though, as a general principle, it has been said that the widow's election is not binding without full knowledge of the nature and extent of the estate.^^ Widow's Application to Extend Time for Her Election. When the widow applies for an order to extend her time to make her election, she should state reasonable cause for granting such order.®^ Effect of Failure of Consideration. If a widow accept a testamentary provision in lieu of dower and it fail through any cause, equity will relieve her, provided the rights of creditors and purchasers have not intervened.®* But the mere fact that that which is taken in lieu of dower turns out of less value than dower is not sufficient in itself to set aside her acceptance f® she is a purchaser in effect by contract.^® 82 C/. Hindley v. Hindley, 29 Hun, 221, 223; Akin v. Kellogg, iig N. Y. 318; Akin V. Kellogg, 119 N. Y. 441; 441, 450. Cf. Chamberlain v. Cham- s. c, 39 Hun, 252, 48 id. 459, 16 berlain, 43 id. 424; Matter of Ben- Abb. N. C. 26s ; Lee v. Tower, 124 son, 96 id. 499, 507. N. Y. 370, 37S, 376; Lee v. Timken, B5 Lgg y Tower, 124 N. Y. 370, 373; 10 App. Div. 213. Akin v. Kellogg, 48 Hun, 459; s. c, 53 Bradhurst v. Field, 32 N. Y. St. 16 N. Y. St. Rep. 428. Rep. 430; s. c, 10 N. Y. Supp. 452. ^^ Hathaway v. Hathaway, 37 Hun, 6* Hone V. Van Schaick, 7 Paige, 265. When Provision in Lieu of Dower Forfeited. 593 § 182. When provision in lieu of dower is forfeited Every jointure, devise and pecuniary provision in lieu of dower is. forfeited by the woman for whose benefit it is made in a case in which she would forfeit her dower; and on such forfeiture, an estate so conveyed for jointure, or devised, or a pecuniary provision so made, immediately vests in the person or legal representatives of the person in whom they would have vested on the determination of her inter- est therein, by her death. Formerly i Revised Statutes, 742, section 15 : § 15. Every jointure, devise and every pecuniary provision in lieu of dower, shall be forfeited by the woman for whose benefit it shall be made, in the same cases in which she would forfeit her dower; and upon such for- feiture, any estate so conveyed for jointure, and every pecuniary provision so made, shall immediately ve.st in the person or his legal representatives, in whom they would have vested on the determination of her interest therein, by the death of such woman.^'' Comment on Section 182. Prior to this provision of the Revised Statutes a jointure was not barred or forfeited, as was dower, by the wife's elopement and living in adultery ;^^ nor was it forfeited after the Divorce Act of 1787^® by a divorce a vinculo matrimonii. The original revisers deemed it desirable to make the law uniform and to forfeit wife's jointure and settlements in lieu of dower, whenever dower was forfeited.^* When Dower is Forfeited. Section 176 of this act®-' provides that a divorce dissolving the marriage contract for the misconduct of the wife, forfeits dower. It is not the misconduct alone which forfeits her dower, but the sentence of divorce. ^^ '>'' Repealed, chap. 547, Laws of 60 Note of revisers to i R. S. 742, 1896. § IS, and § 176, The Real Prop. Law. 58 See the English acts discussed Cf. Forrest v. Forrest, 3 Bosw. 661, under § 176, The Real Prop. Law, 695. supra, p. S7S. ei Supra, p. 575. ^^ Supra, ^. S75- ^^ Supra, p. 576. 38 594 Effect of Acts of Husband. § 183. Effect of acts of husband. — An act, deed, or convey- ance, executed or performed by the husband without the assent of his wife, evidenced by her acknowledgment thereof, in the manner required by law to pass the con- tingent right of dower of a married woman, or a judgment or decree confessed by or recovered against him, or any laches, default, covin or crime of a husband, does not pre- judice the right of his wife to her dower or jointure, or preclude her from the recovery thereof. Formerly i Revised Statutes, 742, section 16: I 16. No act, deed or conveyance, executed or performed by the husband, without the assent of his wife, evidenced by her acknowledgment thereof, in the manner required by law to pass the estates of married women, and no judgment or decree confessed by or recovered against him, and no laches, default, covin or crime of the husband, shall prejudice the right of his wife to her dower or jointure, or preclude her from the recovery thereof, if otherwise entitled thereto. ^3 History of this Enactment. The original revisers in their note to the above section" state that that section is in substance the old " act concerning dower " of 1787,® which was, in turn, partly taken from the Statute of Westminster 11.®^ The Statute of Westminster II provided that " in case where the husband, being impleaded for land, giveth up the land demanded unto his adversary by covin; after the death of the husband, the justices shall award the wife her dower," etc., etc. Such in substance the law remains at the present day.'^'^ The loth section of the New York " act concerning dower," re- enacted also that other ancient English statute providing that the attainder or outlawry of the husband should be no bar to dower.*'* Dower in Husband's Defeasible Estate. It was stated, under section 170 of this article of The Real Property Law, that the title of dower attaches on the concurrence of marriage and seisin of the hus- band.®^ If the husband's estate is defeasible, the wife's dower right follows the nature of the husband's estate, and is defeasible in like 63 Repealed, chap. 547, Laws of 67 Poillon v. Poillon, yj Misc. Rep. 1896. 730; revd., 90 App. Div. 71. «4 I R S. 742, § 16. 68 I Edw. VI, chap. 12, § 17; 5 & 6 65 2 J. & V. 4; I K. & R. si; I R. id., chap. 11, § 13. L. S6, S9- 68 Supra, pp. 561, 562. «6i3 Edw. I, chap. 4; 2 Inst. 347- How Dower Barred. 595 manner.™ But no act or covin of the husband, or no judgment rendered against him alone, defeats dower." How Wife May Bar or Release Dower to' Third Persons. Having seen that the husband's deed does not bar the dower of his wife, let us next examine the mode in which' she may release her title of dower. At common law a wife's title of dower could not be barred by a collateral satisfaction.'^ She might bar herself only by join- ing her husband in a fine or recovery.'^* This more tedious process was not resorted to in the province of New York. In New York, by custom, a feme covert might bar her title of dower by deed if it were made by her in conjunction with her husband.'* And it seems that in New York, prior to the year 1771, her deed need not be even separately acknowledged to bar dower,'^ although in most of the other British plantations only a deed of the wife and husband, separately acknowledged by the wife, after the custom of London in Middlesex,™ had the force of a fine or recovery to bar dower or pass her estate." In 1788 the substance of the former act of ''"Supra, p. 563- Ti Scott V. Howard, 3 Barb. 319; Denton v. Nanny, 8 id. 618; Law- rence V. Miller, 2 N. Y. 24s, 251; House V. Jackson, 50 id. 161, 165; Elmendorf v. Lockwood, 57 id- .322, 324; Huff V. Wheeler, 27 Misc. Rep. 763; Poillon V. Poillon, 37 id. 730; revd., go App. Div. 71 ; Nichols v. Park, 38 id. 176; 3 Columbia Law Rev. 420. T2 Cruise, Dig., tit. 7, chap, i, § i. ''S 2 Black. Comm. 137 ; Cruise, Dig., tit. 6, chap. j||^ § 14; Bool v. Mix, 17 Wend. 119, 128. Cf. remarks, infra, i 251, The Real Prop. Law. '*Van Winkle v. Constantine, 10 N. Y. 422; Constantine v. Van Winkle, 6 Hill, 177; Jackson, ex dem., etc. V. Gilchrist, 15 Johns. 89, 114; Jackson, ex dem., etc. v. HoUoway, 7 id. 81, 86; Van Schaack's N. Y. Laws, 611. ■^s Id., supra; Van Schaack's N. Y. Laws, 611, 765- Cf. I J. & V. Ap- pendix, Vni; 2 J. & V. 84. The "Charter of Libertys " of 1683 re- quired her separate examination, but this act was disallowed. Constantine V. Van Winkle. 10 N. Y. 422, 6 Hill, 177; Jackson, ex dem., etc. v. Gil- christ, IS Johns. 89, 113; Humbert v. Trinity Church, 24 Wend. 587, 625 ; Albany Fire Ins. Co. v. Bay, 4 N. Y. I, 23; Bool V. Mix, 17 Wend. 119, 129; Hardenburg v. Lakin, 47 N. Y. 109; chap. 123, Laws of 1775. ^6 And by custom of some other places. Cruise, Dig., tit. 6, chap. 4, § 15; I Cruise, Fines, 53, 54, 97. See Park, Dower, 195. This custom was confirmed by statutes 34 & 35 Hen. VIII, chap. 22. Cf. 2 Black. Comm. 361. '' Stokes' British Colonies. 443 ; Chancellor Jones of New York, in " Collection of N. Y. Historical So- ciety " for 1821, p. 347. See acts ap- pendix to New York R. S. of 1830 (ist ed.), 22, 23. 596 How Dower Barred. 177178 ^as re-enacted by the State Legislature, and the wife's pri- vate examination made necessary to bar dowerJ* This act was from time to time re-enacted in the various revisions*" of the stat- ute law prior to this act. Acta do not Apply to Non-residents. These acts do not apply to those women who are residents of other States.*^ Effect of Wife's Release to Husband. An agreement between husband and wife to release her title of dower to him does not bind her.*^ How far it may now at this late day, when she has full capacity to convey to her husband, estop her in equity from claiming dower may present under certain circumstances another question;®^ although a title of dower is not regarded as the wife's separate property.** If the husband and wife live apart when the release is made his equity would be still stronger.*^ Vested RemainderSipf Husband. As no dower subsists in estates in remainder, of whim the husband is, not seised in possession,*^ the wife need not join in the conveyance thereof.*'' Effect of Deed by Husband and Wife. In New York a deed of hus- band and adult wife, separately acknowledged by the wife, operates by way of estoppel to release dower to the grantee of the husband,** but not to release it to a stranger to the title.*® Although a hus- ''s Van Schaack's N. Y. Laws, 611, ^^ Jackson v. Walters, 86 App. Div. 76s ; chap. 123, N. Y. Laws of 1775. 470. ™2 J. & V. 265. 88 Malloney v. Horan, 49 N. Y. iii, 80 I K. & R. 478; I R. L. 360: I 118: Elmendorf v. Lockwood, 57 id. R. S. 758, § 10; id. 742, § 16. 322, 324 (the statutes are miscited in 81 Chap, iss. Laws of 1801 ; i R. L. this last-mentioned case, but the of 1813, p. 369, § 2; I R. S. 758, § 11; conclusion is accurate); Hinch- Andrews v. Shaflfer, 12 How. Pr. 441. lifle v. Shea, 103 id. 153; Witthaus v. 82 § 186, The Real Prop. Law ; Gui- Sohack. 105 id. 332 ; Jackson ex dem. det V. Brown, 3 Abb. N. C. 295, 54 v. Vanderheyden, 17 Johns. 167; How. Pr. 49; Wightman v. Schliefer, Tompkins v. Fonda, 4 Paige, 448; 45 N. Y. St. Rep. 6g8. Taylor v. Post, 30 Hun, 446, but not 83 § 26, The Domestic Relations as to infant feme; Mclntyre v. Cos- Law; Wood V. Seely, 32 N. Y. 105; tel!o, 47 id. 289; s. c. 14 N. Y. St. Dower v. Dower, 36 Misc. Rep. 559. Rep, 369; Sandford v. McLean, i 84KelIey v. Case, i8 Hun, 472. Snndf. Ch. 117; Cunningham v. 85 Lawrence v. Lawrence, 31 Misc. Knight, i Barb. 399. Rep. 646; Hendricks v. Isaacs, 117 89 Merchants' Bank v. Thomson, 55 N. Y. 411. Sed cf. authorities cited N. Y. 7; Malloney v. Horan, 49 id. un Supra, p. 596. ^^ Supra, p. 597, note 92. 604 Married Woman May Release Dower by Attorney. § 187. Married woman may release dower by attorney. — A married woman qf full age may release her inchoate right of dower in real property by attorney in fact in any case where she can personally release the same. Formerly chapter 599, Laws of 1893, as follows: An Act relating to powers of attorney of married woman. Approved by the Governor May 5, 1893. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Any married woman of the age of twenty-one years, or more, may execute, acknowledge and deliver her power of attorney for the release of her inchoate right of dower in real estate situated in this state, in all cases where such married woman may now execute such release. § 2. This act shall take effect immediately.*^ Comment on Section 187, Supra. At the common law a married woman could not appoint or constitute an attorney.*^ When empowered to appoint an attorney, on general principles she could not do by another what she herself might not do. We have seen that she may not release her dower to a stranger to the title.** In 1878, an adult married woman was authorized by statute to appoint an attorney in fact,** and under this act it was held that she might appoint her husband her attorney to release her dower to a grantee of the husband.*^ In 1893 an adult feme covert was specially authorized to release her inchoate right of dower by attorney in all cases where she herself could release it.*® But this act only gave expression to the former law as stated in Wronkow V. Oakley. She cannot yet personally release her dower to a stranger to the title, and, therefore, she cannot appoint her husband to so release it for her. Omitted Sections of this Article. There are at present no sections of The Real Property Law numbered 188, 189. *i Repealed, chap. 547, Laws of *s Wronkow v. Oakley, 133 N. Y. 1896. 505, affg. In re Wolff, 19 N. Y. Supp. *2 Hardenburgh v. Lakin, 47 N. Y. 51. 109, 113. *6 See the act at the head of this *3 Supra, p. 596. page and Piatt v. Finck, 60 App. Div. ** Chap. 300, Laws of 1878. 312. The Real Property Law. 605 ARTICLE VL Landlord and Tenant. Section 190. Action for use and occupation. 191. Rent due on life leases recoverable. 192. When rent is apportionable. 193. Rights where property or lease is transferred. 194. Attornment by tenant. 195. Notice of action adverse to possession of tenant. 196. Effect of renewal on sub-lease. 197. When tenant may surrender premises. 198. Termination of tenancies at will or by sufferance, by notice. 199. Liability of tenant holding over after giving notice of inten- tion to quit. 200. Liability of tenant holding over after giving notice to quit. 201. Liability of landlord where premises are occupied for unlaw- ful purpose. 202. Duration of certain agreements in New York. § 190. Action for use and occupation — The landlord may re- cover a reasonable compensation for the use and occupa- tion of real property, by any person, under an agreement, not made by deed; and a parol lease or other agreement may be used as evidence of the amount to which he is entitled. Formerly i Revised Statutes, 748, section 26: § 26. Any landlord may recover in an action on the case, a reasonable satisfaction for the use and occupation of any lands or tenements, by any person under any agreement not made by deed: and if any parol demise or other agreement, not being by deed, by which a certain rent is reserved, shall appear in evidence on the trial of any such action, the plaintiff shall not on that account be debarred from a recovery, but may make use thereof as evidence of the amount of the damages to be recovered.l Comments. The present article of The Real Property Law, like the Revised Statutes,^ by no means exhausts the law regarding landlord and tenant in their reciprocal relations. It simply codi- 1 Repealed, chap. 547, Laws of " Of Estates for Years and at Will, 1896. and the Rights and Duties of Land- 2 Tit. IV, chap. 1, part II, R. S. lords and Tenants." 606 " Landlord " and " Tenant." fies some great statutes, several of them of early origin.^ The section now under consideration treats of the remedy for use and occupation in cases where the common law gave none, or a most imperfect one at best. The Conventional Relation of Landlord and Tenant. The term " land- lord " indicated primarily the lord of the fief,* but by a series of historic gradations, the term has come to denote an owner of an estate in real property, or of an interest therein, when considered in relation to some one else who occupies or holds under such owner. In reference to the latter person, called the " tenant," such owner is the " landlord." The relation of landlord and tenant is wholly conventional and relative,* and we now never speak of an owner of land who has no tenant as a " landlord." The modern terms " lessor " and " lessee " also denote the same relation, but ordinarily connote a more certain and formal demise, usually in writing, although no writing be necessary to the validity of the demise. But the relation of landlord and tenant does not always subsist between an owner and occupier. A mere license, such as a right to use a desk in an office, does not constitute a tenancy or give the licensee an estate for years.^ The present modern remedies for use and occupation,'^ or possession, are wholly predicated of this conventional legal relation of landlord and tenant.* Between a landlord and a tenant there is always a tenure subsisting,* for neither the Revised Statutes'" nor the Constitution of the State abolish tenure, but feudal tenure only;'' the lands themselves alone beirig made allodial.'^ The conventional relation of landlord and tenant usually, though not necessarily, subsists only in connection with terms of years, which 3 Vide supra, pp. 149, 150, under ^ Sylvester v. Ralston, 31 Barb. 286 ; § 20, The Real Prop. Law, "Estates CoUyer v. Collyer, 113 N. Y. 442. for Years," and pp. 173-184, under 8 Burnet v. Scribner, 16 Barb. 621 ; § 21, The Real Prop. Law, " Rents Deuel v. Rust, 24 id. 438 ; People Reserved on Estates in Fee." ex rel. Hubbard v. Annis, 45 id. 304; * See introduction to Comyn, Land- Wilson v. Martin, i Den. 602. lord & Tenant (2d ed. London), i 9 Saunders v. Hanes, 44 N. Y. 353, seq. 361. 6 Hosford v. Ballard, 39 N. Y. 147, 10 i R. S. 718, § 3. 151. " Const, of 189s, art. i, § 11. 6 Eaton V. Hall, 43 Misc. Rep. 153, '2 Const, of 1895, art. i, § 12. and cases there cited. " Use and Occupation." 607 grew up subsequent to the feudal settlement, and such tenancies are, therefore, not feudal in origin. The rights of the tenant for years pushed themselves into legal recognition as " estates " only by force of statutes, and not by the feudal or common law.'^ But in New York, with its historic " perpetual or manor leases," re- served on estates in fee,^* rent alone is regarded as a sign of the conventional relation of landlord and tenant. ^^ Rent may be nominal or rent service. Rent is not of feudal origin, but is asso- ciated, at first, with the non-military or socage tenure,^^ so that in the nominal abolition of feudal tenures in New York, rent and the incidents of socage tenure were always saved." Rent reserved. By the common law, rent may be reserved only for the grantor and his assigns, not to a stranger.^* It may not be reserved to the grantor's widow, for that is a testamentary disposition.^* Account of Section 190, Supra. This section of the original, or Revised Statutes,^" was taken from the New York Revised Laws of 1813,^^ which in turn came from the statute of 1787,^^ re-enacting the colonial statute on the same subject.^* The history of the remedy for use and occupation is not very ancient. The colonial statutes re-enacted the statute of 11 George II (Chap. 19, § 14) almost verbatim. The object of the statute 11 George II (Chap. 19, § 14) was to furnish landlords with a better remedy than any the common law recognized. How far an action for use and occupation would lie, by the common law, independently of this statute has been debated.^* It was, however, the better opinion that an action on the case did not lie for rent, as it was a matter savoring of the realty, and debt was the proper remedy ,^^ except 13 Supra, pp. 141, 143 ; Challis, 6, ^^ Priester v. Holock, 70 App. Div. 46, 47- 256, 259. ^* Supra, pp. 172-184. 20 § ipo, supra; i R. S. 748, § 26. 15 Saunders v. Hanes, 44 N. Y. 353. 21 i r. l. ^^^ i 31. 16 Dalrymple, Feudal Prop., chap. 222 J. & V. 241, § 31. II; supra, p. 147. 23 chap. 14, Laws of 1774; 11 Geo. 1^ Const, of 1894-5, art. i, § 11; vide II, chap. 19, § 14; Vernam v. Smith, supra, p. 78. IS N. Y. 327, 330; Preston v. Hawley, 18 Burton, Real Prop., § 1102. Cf. 139 id. 296, 300. Hawley v. James, 16 Wend. 154, 155, 24Bigelow, Estoppels (2d ed.), p. and p. 375, supra. 350, and see under next section. 25 Archbold, Landl. & Ten. 148. 608 " Use and Occupation." after the expiration of the tenancy, when assumpsit might lie.^" The statute II George II meant to provide an easy remedy, in the simple case of actual occupation, leaving more complicated cases to their ordinary remedy .^^ When the Revised Statutes vi'as en- acted the Code of Procedure had not been thought of, and the com- mon-law practice still prevailed. The object of the present re-enactment of this section is not to modify practice, since all rights are redressed by the same form of action under the Code of Civil Procedure, but is to establish a plain remedy where the com- mon law gave none, or a doubtful one. When Action for Use and Occupation Lies. Under the Revised Stat- utes and the Revised Laws, it was held that an action for use and occupation, by virtue of this statute, lay only where the con- ventional relation of landlord and tenant existed.^^ It lay where the holding was on an implied, as well as on an express, permission of the landlord,^* and formerly against tenants who held over, whether originally the tenancy was by deed or oral.^" The con- ventional relation of landlord and tenant may be implied; it exists where he who is in possession has recognized the other as his lessor, in some such way as to entail the legal obHgations of ten- ancy.^' It does not exist when the occupant is a trespasser,^^ or 28 Comyn, Landl. & Ten. 435. Cf. 523. Cf. to the contrary, Herter v. Preston v. Hawley, 139 N. Y. 296, Mullen, 52 App. Div. 325; Macklin v. 300. McNetton, 30 Misc. Rep. 749; Cole- 2T Comyn, Landl. & Ten. 436. man v. The Fitzgerald Bros. Brew- 28 Lalor, Real Prop. 301 ; Hall v. ing Co., 29 id. 349 ; Burton v. Yale, Southmayd, 15 Barb. 332; Sylvester 75 , App. Div. 388; Coudert v. Cohn, V. Ralston, 31 id. 286; Smith v. Stew- 118 N. Y. 309; Haynes v. Aldrich, art, 6 Johns. 46; Bancroft v. Ward- 133 id. 287; Herter v. Mullen, 9 App. well, 13 id. 489; Preston v. Hawley, Div. 593; revd., 159 N. Y. 28, 33. loi N. Y. 586 ; s. c, 139 id. 296 ; Coll- 31 Moffatt v. Smith, 4 N. Y. 126 ; yer v. CoUyer, 113 id. 442; Lamb v. Benjamin v. Benjamin, f id. 383, Lamb, 146 id. 317, 323; Biglow v. 388; Coit v. Planer, 51 id. 647; Pierce Biglow, 75 App. Div. 98. v. Pierce, 25 Barb. 243- Dorschel' v. 29 Osgood v. Dewey, 13 Johns. Burkley, 18 Misc. Rep. 240; David 240; Lalor, Real Prop. 301. Stevenson Brewing Co. v. Culbertson, sOAbeel v. Radcliff, 13 Johns. 297; id. 486; Gregg v. Tamsen, 42 App. 15 id. 505. See all the earlier New Div. 138. York cases cited, Lalor, Real Prop. ^2 Featherstonhaugh v. Bradshaw, i 301-304 ; Evertson v. Sawyer, 2 Wend- Wend. 134 ; Baxter v. West, 5 Daly, 507; Rosenberg v. Lustgarten, 41 N. 460; Preston v. Hawley, 139 N. Y. Y. St. Rep. 623; s. c, 16 N. Y. Supp. 296, 298. " Use and Occupation." 609 has not recognized the owner as landlord in any way.^* Where defendant is in under a contract of sale, which is abandoned, the action lies;^* so for past-due rent when corporate tenant was in under a demise ultra vires the corporation.^^ It lies against a voluntary assignee, even when the assignment is void.^^ When Action Lies or Not. When the tenant is in under a deed the action for use and occupation does not lie.^^ Nor does it lie in favor of the original owner without a surrender against a sub- tenant.^* The presumption is, however, that the sub-tenant is in as assignee of the original lease.^^ Where one enters under a lease void as against the Statute of Frauds, the landlord may recover for use and occupation,*" and the rent reserved and terms of such lease are evidence in an action for use and occupation.*^ In New York a tenant entering under a parol demise, void by the Statute of Frauds, and paying rent, may become a tenant from year to year, and a continuance of occupancy into the second year renders him chargeable with the rent until its close.*^ But the mere fact that a person goes into possession under a demise, void under the Stat- ute of Frauds, does not create a yearly tenancy but a tenancy at ■will, and he is liable only for actual occupation.*^ 33 Davis V. Pres., etc., D. & H. 37 ; Laughran v. Smith, 75 id. 205. Canal Co., 109 N. Y. 47. Cf. Reeder v. Sayre, 70 id. 180; Van 3^ Pierce v. Pierce, 25 Barb. 243. Arsdale v. Buck, 82 App. Div. 383. 35 Bath Gas Light Co. v. Claffy, 151 *i Talamo v. Spitzmiller, 120 N. Y. N. Y. 24. Cf. De la Vergne Re- 37, 42 ; § 190, supra; Gilfoyle v. Cahill, frigerating Machine Co. v. German ig Misc. Rep. 68, 70, 72; Williams v. Savings Institution, 175 U. S. 40. Sherman, 7 Wend. log; vide, § 224, 36 Mead v. Madden, 85 App. Div. infra. 10- *2Coudert v. Cohn, 118 N. Y. 309; 37 § 190, The Real Prop. Law; Unglish v. Marvin, 128 id. 380, 385; Kierstedt v. Orange & Alexan- People ex rel. Botsford v. Darling, 47 dria R. R. Co., 69 N. Y. 343 ; Bedford id. 666. Cf. Kernochan v. Wilkens, V. Terhune, 30 id. 453. 3 App. Div. 596. 38 Bedford v. Terhune, 30 N. Y. 43 Talamo v. Spitzmiller, 120 N. Y. 453- Cf. McFarlan v. Watson, 3 id. 37; Unglish v. Marvin, 128 id. 380; 2^6- Prindle v. Anderson, 19 Wend. 391 ; 39 Frank v. N. Y., L. E. & W. R. R. People ex rel. Botsford v. Darling, Co., 122 N. Y. 197, 219. 47 N. Y. 666; Hungerford v. Wag- *o Thomas v. Nelson, 69 N. Y. 118, oner, 5 App. Div. 590. 121; Talamo v. Spitzmiller, 120 id. 39 610 " Use and Occupation." Damages. Where there is no express agreement as to rent, the tenant must pay as much as the premises are reasonably worth.** Action does not Lie if Premises to tie Used for Unlawful Purpose. Knowl- edge by the landlord that the premises are to be used for an unlaw- ful purpose will defeat this as every other form of action.*^ Actual Occupation by Tenant not Necessary. Actual or manual occu- pation by the tenant is not essential to maintain an action for use and occupation; if the power to occupy and enjoy is given by the landlord, that suffices.*^ Recovery, how Limited. But the recovery cannot extend beyond the time of actual occupation or opportunity to occupy.*^ Right of Way. The action does not lie for the use of a mere right of way.** When Contract to Pay Rent not Implied. Where the use and occu- pation of real estate is under such circumstances as to show that there was no expectation of rent by either party, a contract to pay rent will not be implied.*^ The issue is, however, a question of fact for the jury.^" When Right of Re-entry not Reserved. When lease contains no clause reserving right of re-entry for nonpayment of rent, ejectment will not lie." When Agreement Specific. When agreement for rent is specific, semble action for use and occupation does not lie.^^ ** Scranton v. Booth, 29 Barb. 171 ; De Graw, 25 Wend. 669. Cf. Croswell Coit V. Planer, 7 Robt. 413, 415. v. Crane, 7 Barb. 191 ; Cleves v. *5 Plath V. Kline, 18 App. Div. 240; Willoughby, 7 Hill, 83. § 201, infra ** Forsyth v. Hartnett, 10 Hun, *6 Little v. Martin, 3 Wend. 220 ; 573. Hall v. Western Transportation Co., *8 Preston v. Hawley, 139 N. Y. 34 N. Y. 284. Cf. Herrmann v. 301 ; Thompson v. Cox, 20 Misc. Rep. Curiel, 3 App. Div. 511; Wood v. 421. Wilcox, I Den. 37; Beach v. Gray, s" Collyer v. CoUyer, 113 N. Y. 2 id. 84; Hoflfman v. Delihanty, 13 442; Lamb v. Lamb, 146 id. 323. Abb. Pr. 388. SI De Lancey v. Ganong, 9 N. Y. *^ Hall V. Western Transportation 25 ; Jones v. Reilly, 174 id. 97, 104. Co., 34 N. Y. 284; Hoflfman v. -Deli- ^^ Sherman v. Ludin, 84 App. Div. hanty, 13 Abb. Pr. 38; Westlake v. 579. Rent Reserved on Life-Leases. 611 § 191. Rent due on life leases recoverable — Rent due on a lease for life or lives, is recoverable by action, as well after as before the death of the person on whose life the rent depends, and in the same manner as rent due on a lease for years. Formerly i Revised Statutes, 747, sections 19, 20 and 21 : § 19. Any person having any rent due upon any lease for life or lives, may have the same remedy to recover such arrears, by action of debt, as if such lease were for years.^s § 20. Every person entitled to any rents dependent upon the life of any other, may, notwithstanding the death of such other person, have the same remedy by action or by distress, for the recovery of all arrears of such rent, that shall be behind and unpaid at the death of such other person, as he might have had if such person was in full life. (As modified by chap. 274, Laws of 1846.5*) § 21. The executors or administrators of every person to whom any rent shall have been due and unpaid at the time of his death, may have the same remedy by action or by distress, for the recovery of all such arrears, that their testator or intestate might have had, if living.^s Account of this Enactment. At dommon law, debt lay for the rent of lands demised for life, for years, or at will. But with this distinction, that upon a lease for years or will, it lay as soon as in arrears, but upon a freehold lease, it was not maintainable until after the lease determined in some way; e. g., by the death of cestui que vie.^^ The English statute 8 Anne, chapter 14, section 4, put freehold leases on the same footing as leases for years. This stat- ute did not, however, extend to the province of New York, but was nevertheless re-enacted in 1788^'^ as a statute of the State. From the Revised Laws of 1813, it was incorporated in the Revised Statutes.^* I Revised Statutes, 747, Sections 20, 21. I Revised Statutes, 747, sec- tions 20 and 21,5" stood upon a different principle. At common law, where a man was seised of a rent service, rent charge, rent seek, or fee farm rent, either in fee or in tail, and died, neither his 53 Repealed, chap. 547, Laws of 56 cf. Comyn, Landl. & Ten. 420. 1896. 57 2 J. & V. 236, § 16. 54 Repealed, chap. 547, Laws of 58 j R. s. 747, § 19. 1896. 59 Supra. 55 Repealed, chap. 547, Laws of 1896. G12 Rent Reserved on Life-Leases. heir nor personal representative could recover from the tenant the arrears of rent which had become due in the lifetime of the owner of the rent.^" The same defect applied to the case of a tenant pur autre vie of a rent who died, living cestui que vie.^''- To remedy the former defect, it was enacted by the statute 32 Henry Vin, chapter 37, entitled '"An act for recovery of arrearages of rent by executors of tenant in fee simple," that the executors should have an action for debt, and might also distrain for the rent unpaid at the time of the death of the person to whom the rent was due.^^ This statute was re-enacted in 1788 in New York,^^ and thence passed into the Revised Laws.®* The Revised Statutes adopted the principle of the Revised Laws, but simplified the language.® Thus rights were given which did not exist by the common law, and proper remedies by action and distraint conferred. Distraint for Rent. Distraint for rent was taken away in 1846,^® and under the Constitution of 1846 the Code of Practice and stat- utes soon simplified the remedies for the collection of rent. But as the common law gave no rights in the cases mentioned above, the provisions of the Revised Statutes®^ have now again been re-enacted in this single section of The Real Property Law."* With the aid of the Code of Practice^ and other statutes'^" this section adequately provides a remedy in all the cases under any of the statutes above mentioned. Defective Lease. Where a lease contains no clause reserving right of re-entry, ejectment will not lie.^^ 60 Co. Litt. 162a. Michaels v. Fishel, 169 N. Y. 381, 61 Comyn, Landl. & Ten. 371. Cf. 389. I R. L. 438, § 17. ^"i I R. S. 747, §§ 19, 20, 21. 62 Wright V. Williams, 5 Cow. 501 ; ^ § 191, supra. Van Rensselaer v. Jones, S Den. 449. 69 Regulating actions, judgments, Cf. Jacques v. Short, 20 Barb. 269, executions, etc. 274. "* Vide Summary Proceeding Acts, 63 2 J. & V. 236, §§ 17, 18, 19; I K. "Consolidation Act," and 2 R. S. & R. 134. 113, § 3. For an interesting account 64 I R. L. 438, 439. of the remedy by Summary Proceed- 6B I R. S. 747, §§ 20, 21, and notes ings, see Michaels v. Fishel, 169 N. of Revisers to same. Y. 381, 389. 66 Chap. 271, Laws of 1846, p. 369; '•^ Supra, p. 610. When Rent is Apportionable. 613 § 192. When rent is apportionable — Where a tenant for life, who shall have demised the real property, dies before the first rent day, or between two rent days, his executor or administrator may recover the proportion of rent which accrued to him before his death. Formerly i Revised Statutes, 747, section 22: § 22. When a tenant for life, who shall have demised any lands, shall^ die on or after the day when any rent became due and payable, his executors or administrators may recover from the under tenant, the whole rent due; if he die before the day when any rent is to become due, they may recover the proportion of rent which accrued before his deathJ^ Apportionment of Rent. This section does not apply to perpetual rents. ^^ At common law rent reserved on estates for years or life could not be apportioned in respect of time.''* Thus, where life tenant demised and died the day before a quarter day and the lease determined, his executors could not claim an apportionment of the rent; nor could the remainderman or reversioner claim that part of the rent which accrued during the life of the tenant for life ; so that the lessee paid nothing.''^ This state of things was remedied in England by the statute 11 George II, chapter 19, section 15.™ The English act was re-enacted in New York in 1788," and passed into the Revised Laws of 1813,''* and thence into the Revised Statutes.'^* But this statute was strictly con- strued, and did not extend to a case where the lease was not made by tenant for life, but was made .before tenant for life's estate vested.*" Act of 1873. In 1875 ^^ ''.ct was passed making all rents, reserved on demises thereafter made, apportionable, and vesting a right of ■^2 Repealed, chap. 547, Laws of ™ See the English act set out in 1896. Cruise, Dig., tit. 28, chap. 3, § 45. ra Vide supra, p. 185. "2 J. & V. 241, § 27; i K. & R. ''* Covenants to apportion were con- 144. sequently inserted in most leases. ^8 j r l_ ^^ 75 Cruise, Dig., tit. 28, chap. 3, 79 1 r. s. 747, § 22; Marshall v. § 44; Marshall v. Moseley, 21 N. Y. Moseley, 21 N. Y. at p. 284. 280, 282 ; Zule v. Zule, 24 Wend. 76 ; so Stilwell v. Doughty, 3 Bradf. O'Neill V. Morris, 28 Misc. Rep. 613, (Sur.) 359; Marshall v. Moseley, 21 616. N. Y. at p. 285; Fay v. Halloran, 35 Barb. 295. 614 When Rent is Apportionable. action in the legal representatives of persons entitled.®^ In 1893 the act of 1875 was repealed**^ and its provisions were transferred lO the Code of Civil Procedure.^* The Commissioners of Statutory Revision state in substance that they have revised the above provision of the Revised Stat- utes in this section with a view to enlarge the remedy.^* SI Chap. 542, Laws of 1875, re- ^ § 2720, Code of Civ. Proc. ; Niles pealed by The Real Prop. Law, art. v. Chase, 29 Hun, 200. X, infra. 84 yijg note to § 192, The Real s^ Chap. 686, Laws of 1893. Prop. Law, Appendix I, infra. Effect of Transfer of Reversion, or Lease. 615 § 193. Rights where property or lease is transferred. — The grantee of leased real property, or of a reversion thereof, or of any rent, the devisee or assignee of the lessor of such a lease, or the heir or personal representative of either of them, has the same remedies, by entry, action or other- wise, for the nonperformance of any agreement contained in the assigned lease for the recovery of rent, for the doing of any waste, or for other cause of forfeiture as his grantor or lessor had, or would have had, if the reversion had remained in him. A lessee of real property, his assignee or personal representative, has the same remedy against the lessor, his grantee or assignee, or the representative of either, for the breach of an agreement contained in the lease, that the lessee might have had against his immedi- ate lessor, except a covenant against incumbrances or re- lating to the title or possession of the premises leased. This section applies as well to a grant or lease in fee, reserv- ing rent, as to a lease for life or for years; but not to a deed of conveyance in fee, made before the ninth day of April, eighteen hundred and five, or after the fourteenth day of April, eighteen hundred and sixty. Formerly i Revised Statutes, 747, sections 23, 24, and i Revised Statutes, 748, section 25 : § 23. The grantees of any demised lands, tenements, rents or other hereditaments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee or assignee, shall have the same remedies by entry, action, distress or other- wise, for the non-performance of any agreement contained in the lease so assigned, or for the recovery of any rent, or for the doing of any waste or other cause of forfeiture, as their grantor or lessor had, or might have had, if such reversion had remained in such lessor or grantor. (Amended by chap. 274, Laws of 1846, by striking out the word " distress." )*5 § 24. The lessees of any lands, their assigns or personal representatives, shall have the same remedy by action or otherwise against the lessor, his grantees, assignees, or his or their representatives, for the breach of any covenant or agreement in such lease contained, as such lessee might have had against his immediate lessor, except covenants against incumbrances, or relating to the title or possession of the premises demised.*® § 25. The provisions of the last two sections shall extend as well to grants or leases in fee, reserving rents, as to leases for life and for years. *5 Repealed, chap. 547, Laws of *^ Repealed, chap. 547. Laws of 1896. 1896. 616 Effect of Transfer of Reversion, or Lease. The last section was amended by chapter 396, Laws of i860, as follows : CHAP. 396. An Act to repeal chapter ninety-eight of the laws of eighteen hundred and five, and the subsequent re-enactment thereof. Passed April 14, i860. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. Chapter ninety-eight of the laws of eighteen hundred and five, passed April ninth, eighteen hundred and five, entitled "An act to amend an act entitled 'An act to enable grantees of reversions to take advantage of the conditions to be performed by lessees,' " and section three of chapter thirty-one of the Revised Laws, passed March nineteenth, eighteen hundred and thirteen, being a re-enactment of said chapter ninety-eight of the laws of eighteen hundred and five, and section twenty-five of chapter one, title four, part two, of the Revised Statutes, being a further re-enactment of the same, shall not apply to deeds of conveyance in fee made before the ninth day of April, eighteen hundred and five, nor to such deeds hereafter to be made. § 2. This act shall take effect immediately.*^ Comment on Form of Section 193, Supra. By including the three fore- going sections of the Revised Statutes in a single section of this act the Commissioners of Statutory Revision have included a variety of laws under one head. It conduces to simplicity, there- fore, to consider this section in its original shape. Account of Legislation Embodied in Section 193, Supra. The provisions of I Revised Statutes, 747, section 23,^^ giving grantees of rever- sions the advantages of any conditions, etc., enjoyed by their grantors, was taken from the New York Revised Laws of 1813,** which in turn came from the re-enactment by the State Legis- lature in 1788 of the English statute of 32 Henry VIH, chapter 34.®** This EngHsh act had extended to New York before its inde- pendence of the Crown.®^ Before the statute 32 Henry VHL chap- ter 34, an assignee of a reversion had a right to sue tenant for rent, for rent was incident to the reversion.^^ But with reference to express covenants and conditions contained in the lease, the ^ Repealed, chap. S47> Laws of ^i And it was adopted by § 35, 1896. Const. 1777, as a statute of the State. 88 Vide supra, p. 615. 92 Dolph v. White, 12 N. Y. 296, 89 I R. L. 363 ; I K. & R. 105. 301 ; Marshall v. Moseley, 20 id. 280, 90 2 J. & V. 184 ; Van Rensselaer v. 283 ; Payn v. Beal, 4 Den. 405, 410. Ball, 19 N. Y. 100, 104 Effect of Transfer of Reversion, or Lease. 617 grantee being a stranger could not avail of them.^^ The statute 32 Henry VIII, chapter 34, enabled assignees of reversions to have the advantages of their assignors against lessees.®* The act was substantially re-enacted in Jones & Varick's Revision of the New York laws, and, as detailed above, passed into the New York Revised Statutes.®^ Assignees of Possibility of Reverter. The assignee of a mere pos- sibility of reverter®^ is not an assignee of a reversion under the acts mentioned, and is not aided by this section of the statute.®^ Assignee of Rent Charges and Perpetual Rents. How far this statute aided in New York assignees of a rent charge, or of a perpetual rent, has been considered above.** The statute 32 Henry VIII, chapter 34, had no reference to assignees of a rent, being confined to assignees of the land.^ Assignees of a rent, but not of the reversion, were, however, enabled to sue for it in their own name in this State, at an early day.^ I Revised Statutes, 747, Section 24, Supra. The provisions of I Re- vised Statutes, 747, section 24,^ giving lessees and their assigns and representatives the same rights against assignees of reversions that they had against their predecessors in demise, is also derived from the same English statute mentioned just above,^ and its re- enactment followed the course in New York detailed in a pre- ceding paragraph.* Indeed, the statute of 32 Henry VIII, chapter 34, provided relief for assignees of reversions against tenants, and also for tenants against assignees of reversions.^ Under this 93 See the text under § 49, The Real id. 143, and cases cited at pp. 311-314, Prop. Law, supra, pp. 311-314; Piatt, supra, under § 49, The Real Prop. Cov. 527; Comyn, Landl. & Ten. 362; Law, and Berenbroick v. St. Luke's Dolph V. White, 12 N. Y. 296 ; Cruger Hospital, 23 App. Div. 339. V. McLaury, 41 id. 219, 226; Willard ^^ Supra, pp. 149, 172-184, under V. Tillman, 2 Hill, 274; Van Rens- §§ 20, 21, The Real Prop. Law. selaer v. Jewett, 5 Den. 121 ; Harbeck 99 Comyn, Landl. & Ten. 267. V. Sylvester, 13 Wend. 608. 1 Demarest v. Willard, 8 Cow. 206 ; 94 This English act is set out in Willard v. Tillman, 3 Hill, 274. Comyn, at p. 263, and in Piatt, Cov. 2 Supra, p. 615. 527, seq. s 32 Hen. VHI, chap. 34. 95 Van Rensselaer v. Ball, 19 N. Y. * 2 J. & V. 184; i K. & R. 105 ; i R. 100, 104. 5 L. 363 ; I R. S. 748, § 24, and now 96 yid,e " Possibility of Reverter," § 193, supra, of The Real Prop. Law. General Index, infra. 6 Taylor, Landl. & Ten., § 439 ; 9'? Van Rensselaer v. Ball, 19 N. Y. Comyn, Landl. & Ten. 269. 100, 103 ; Upington v. Corrigan, 151 618 Effect of Transfer of Reversion, or Lease. statute the common law was so modified as to give tenants the same rights, against assignees of reversions, on real covenants and conditions in demises that they had against the original lessors,® provided such covenants and conditions run with the land and are not purely personal or in grossJ I Revised Statutes, 748, Section 25, Supra. The provisions of I Re- vised Statutes, 748, section 25, were an epitome of chapter 98 of the Laws of 1805, as it was re-enacted in the Revised Laws of 1813.* In the remarks under section 21 of The Real Property Law, the remedies reserved on fee farm grants, or those grants in fee subject to perpetual rents, have been freely discussed,® and it is not necessary to repeat, in detail, the causes which led to the act of 1805. We may now confine our attention to the salient points involved in this branch of section 193 of The Real Property Law.^" In the first place we must remember that the act 32 Henry VIII, chapter 34^^ (embodied in i R. S. 747, §§ 23, 24), had no relation to assignments of perpetual rents reserved on estates in fee, for there the tenant of the rent had no reversion.^^ As after the Statute Quia Emptores no subject could reserve a rent as a mere incident of tenure, the reservation of a perpetual rent seek, or one unaccompanied with a charge on land, or a clause reserving right of distress or re-entry, was, at common law, a very precarious security even in the hands of the original grantee.^^ Indeed, it was claimed in New York that the assignees and devisees of the tenant of the perpetual rents had practically no remedy whatever." This claim extended even to rents charge, such as were usual in the Manors of Rensselaer and Livingston.^^ The act of 1805, extending the remedies and rights of the act 32 Henry VIIIj chapter 34, to assignees of rents reserved on grants in fee, 8 Piatt, Cov. 522 ; Buck v. Binnen- * i R L. 364, § 3, and thence in- ger, 3 Barb. 391 ; Myers v. Burns, 33 troduced in i R. S. 748, § 23. id. 401; s. c, 35 N. Y. 269; Wilkin- ^ Supra, pp. 172-184. son V. Petit, 47 Barb. 230; Verplanck '^'^ Supra, p. 615. V. Wright, 23 Wend. 506 ; Allen v. ^i Supra, p. 616. Culver, 3 Den. 284, 294; Phoenix Ins. i^Comyn, Landl. & Ten. 267; Van Co. V. Continental Ins. Co., 87 N. Y. Rensselaer v. Read, 26 N. Y. at p. 400. 569- T Norman v. Wells, 17 Wend. 136 ; ^^ The right of distraint depended Mirick v. Bashford, 38 Barb. 191. on fealty and tenure at common law. Cf. Avery v. N. Y. Cent. & H. R. R. Supra, p. 81. R. Co., 7 N. Y. Supp. 341; Wilmurt ^* Supra, pp. 178, 179. v. McGrane, 16 App. Div. 412. i^ These grants usually reserved the Effect of Transfer of Reversion, or Lease. 619 was long considered the basis of protection to all devisees, assignees and heirs of perpetual rents in New York.*^ Chapter 396 of the Laws of i860, however, repealed the act of 1805 as far as possible, making that act inapplicable to grants in fee made prior to 1805 or subsequently to i860. The object of this repeal was supposed to be, nay was, to take away or embarrass the remedies of devisees, assignees or heirs of perpetual rents reserved on deeds in fee.^^ But subsequently to i860 it was held that the remedies of assignees, devisees and heirs of perpetual rents reserved in deeds in fee, were independent of the act of 1805, and that an action on the covenant lay at common law;-'* that the covenant ran with the land, and might be taken advantage of by grantees, devisees and assignees of the original covenantee.^® This decision puts the remedies on covenants for the payment of rent, and on conditions for re-entry,^" contained in deeds in fee, at rest in New York, independently of the act of 1805 and of this section of The Real Property Law.^^ Even proof of non-payment of rent for a period of sixty-three years will not raise a conclusive presumption of release of rent reserved, when the covenant sued on remains in possession of the covenantee, or his heirs and assigns.^^ Remedies of Heirs of Lessor. Before this section, the remedies of heirs by entry, action or otherwise, on breaches of covenants in leases, were provided by statute.^^ They might maintain action for waste,^* and their right of action was not impaired by descent cast.^ right to re-enter for breach of condi- 20 Van Rensselaer v. Read, 26 N. tions subsequent, and the right to Y. at p. 576; Van Rensselaer v. Den- distrain, but not invariably. {Vide nison, 35 id. 393; Cruger v. Mc- Hosford V. Ballard, 39 N. Y. at p. Laury, 41 id. at p. 222; Michaels v. 150.) Cf. chap. 14, Laws of 1774. Fishel, 169 id. 391. Cf. Graves v. ^^ Supra, pp. 178, 179. See, also, Deterling, 120 id. at p. 457. the curious history of the tenants' 21 Brj^jt y. Church, no N. Y. 537; side of the anti-rent difficulties in Taylor, Landl. & Ten. note to § 261 New York, set out in a book entitled (8tK ed.). Cf. Jones v. Reilly, 174 " Rents, Covenants and Conditions," N. Y. 97, 104. by Bingham and Colvin, Albany, 1857. ^2 Central Bank v. Heydorn, 48 N. Sed cf. chap. 14, Laws of 1774. Y. 260. Cf. Chap. 227, Laws of 1900. I'' See reporter's note to Cruger v. 23 j r g, .^^.^^ § 23 ; Laws of 1846, McLaury, 41 N. Y. at p. 227. chap. 274. 18 Van Rensselaer v. Read, 26 N. 2^ 2 R. S. 334, § 4 ; Code Civ. Proc, Y. 558. § 1652. 1» Van Rensselaer v. Read, 26 N. 25 2 R. S. 295, § 15 ; Code of Proc, Y. SS8. § 87; Code of Civ. Proc, § 374. 620 Attornment. § 194. Attornment by tenant. — The attornment of a tenant to a stranger is absolutely void, and does not in any way affect the possession of the landlord unless made either: 1. With the consent of the landlord; or, 2. Pursuant to or in consequence of a judgment, order, or decree of a court of competent jurisdiction; or, 3. To a mortgagee, after the mortgage has become forfeited. Formerly i Revised Statutes, 744, section 3 : § 3. The attornment of a tenant to a stranger shall be absolutely void, and shall not in any wise affect the possession of his landlord, unless it be made, 1. With the consent of the landlord : or, 2. Pursuant to, or in consequence of, a judgment at law, or the order or a decree of a court of equity : or, 3. To a mortgagee after the mortgage has become forfeited.^s Attornment. At common law, an attornment was the assent of the tenant to a grant of the seigniory. This grant, as the rela- tion of lord and tenant was reciprocal, could not be made without the tenant's consent.^^ Such consent was an " attornment." ^ This restraint on the lord's power of alienation soon wore away.^ Even after the gradual amelioration of the feudal law, an attornment of the tenant was still, however, necessary for some purposes when a landlord assigned a reversion.^" The legal doctrine of attornment had three purposes: (i) That the tenant might not be subjected to a new landlord without his consent; (2) that he might know to whom to render services and pay rent, and distinguish between an unlawful and lawful taking or distraint of his cattle by persons claiming to be his landlords; (3) that by such attornment, the grantee of the reversion might be put in acknowledged and public possession.*^' The necessity of attornment was partly avoided by the method of conveying to uses under the statute 27 Henry VIII, chapter 10, and by the Statutes of Wills (32, 34 & 35 Henry VIII), 26 Repealed, chap. 547, Laws of ^^ 3 Preston, Abstracts of Title, 82. i8g6. Prior to 4 & 5 Anne, the grant of a re- 2T Co. Litt. 309a ; Litt., § 551 ; vide version or an incorporeal heredita- § 213, The Real Prop. Law. ment was not perfect till attornment; 28 See present definition of attorn- and see Comyn, Landl. & Ten. 423. ment, Austin v. Ahearne, 61 N. Y. 6. ^^ Gilbert, Tenures, 81. 29 2 Black. Comm. 72. Attornment. 621 by which the estate was vested in the devisee ;^^ and such necessity of attornment was almost taken away by two later statutes. ^^ These two acts, not extending to the province of New York, were substantially re-enacted here in, 1773 and 1774.** In 1788, these two English acts were again re-enacted by the State Legislature,*^ and thence passed into subsequent revisions,*^ including the Re- vised Statutes^'' and this present law.** By virtue of these enact- ments, attornment is not now necessary to an assignment of a reversion. II George II, Chaptei ig. The present sections of The Real Prop- erty Law*® are not essentially different from the English statutes cited above.*" The latter law (11 Geo. II) was copied into Jones & Varick's Revision, and enacted in the following words : And whereas the possession of estates in lands, tenements and heredita- ments, is rendered very precarious, by the frequent and fraudulent practice of tenants, in attorning to strangers who claim title to the estates of their re- spective landlord or landlords, lessor or lessors, who by that means are turned out of possession of their respective estates, and put to the difficulty and expence of recovering the possession thereof, by actions or suits at law : For remedy whereof, Be it further enacted, by the authority aforesaid, That all and every such attornment or attornments of any tenant or tenants of any messuages, lands, tenements or hereditaments, shall be absolutely null and void, to all intents and purposes whatsoever, and the possession of their re- spective landlord or landlords, lessor or lessors, shall not be deemed or con- strued to be in any wise changed, altered or affected, by any such attornment or attornments : Provided always, That nothing herein contained, shall extend to vacate or affect any attornment made pursuant to and in conse- quence of some judgment at law, or decree, or order of a court of equity, or made with the privity and consent of the landlord or landlords, lessor or lessors, or to any mortgagee, after the mortgage is become forfeited.*! 32 Comyn, Landl. & Ten. 423 ; 38 i k. & R. 134 ; id. 357 ; i R. L. of Archbold, Landl. & Ten. 76. 1813, 443 ; id. 525. 334 Anne, chap. 16, §§ 9, 10; 11 37 j r 5. 744, § 3; id. 739, § 146. Geo. 11, chap. 19, § 11. 38 § 194, The Real Prop. Law; id., 3* Van Schaack's N. Y. Laws, 768, § 213; O'Donnell v. Mclntyre, 37 § 7; N. Y. Laws of 1774, chap. 14. Hun, 623. It was thought that the doctnne of 39 § jp^^ supra; § 213, infra. attornment had a limited application ^o^ Anne, chap. 16; 11 Geo. II, in America even before these stat- chap. 19. These acts are set out in utes. I Hilliard, Real Prop. 190. Archbold, Landl. & Ten. 76. This is shown by the date of the re- *i2 J. & V. 240; adopted with a ver- ■enactments in New York. bal change or two in i K. & R. 134; 35 2 J. & V. 240, § 28; id. 281, § 32. I R. L. of 1813, 443. 622 Attornment. The substance of the act 4 Anne, chapter 16, was also re-enacted saving rents paid by tenant without notice of assignment of reversion.*^ Attornment to Mortgagee. The statutes mentioned above have almost dispensed with the necessity of attornment, but not en- tirely.*^ Even at the present day in New York, attornment to a mortgagee is necessary where mortgagor in possession executes a lease, and then defaults. The mortgagee cannot take advantage of a lease, made subsequent to his mortgage, unless tenant attorns.** As such a lease is ineffectual against the prior mortgage*^ without an attornment, it is not, and ought not to be, binding on the tenant.*^ An attornment to mortgagee is, however, expressly allowed by this section of the act.*^ As to whether such attorn- ment constitutes a new tenancy, or a continuance of the old, for the purpose of back rents, there is a decided difference of opinion.*^ Attornment to Stranger. While an attornment to a stranger is void as to the landlord since 11 George II,*® it may be binding as to the tenant,^" and valid with the consent of the landlord,^^ or if made pursuant to a judgment of a competent court.^^ But where the judgment is reversed, the attornment is a nullity again.®^ *2 Van Schaack, 768 ; 2 J. & V. 281 ; v. Dean, 3 Wend. 208 ; Simers v. Sal- § 32, I R. L. 525 ; I R. S. 739, § 146. tus, 3 Den. 214. Cf. i R. S. 744, § 3 ; Vide under § 213, The Real Prop, i R. L. 443, § 28; 11 Geo. II, chap. Law, infra. 19. ■43 2 Bingh. 59 ; i Powell, Mortgages, ** Cf. Austin v. Ahearne, 61 N. Y. 174, n. ; Austin v. Ahearne, 61 N. Y. 6;Taylor, Landl. & Ten. (8th ed.) 6; O'Donnell v. Mclntyre. 118 id. §§ 121, 442, notes; McGregor v. The 156; Merritt v. Smith, 27 Misc. Rep. Board of Ed. City N. Y., 107 N. Y. 366. Sii. ** Moran v. The Pittsburgh, Cin. & « O'Donnell v. Mclntyre, 118 N. Y. St. Louis R. R. Co., 32 Fed. 78; 156; s. c, below, 37 Hun, 623; Law- Sprague Nat. Bank v. Erie R. R. Co., rence v. Brown, 5 N. Y. 394, 405 ; 22 App. Div. 526; Archbold, Landl. Freeman v. Ogden, 40 id. 105, 109; § Ten. 77; Grand Trunk Ry. Co. v. Jackson ex dem., etc. v. De Lancey, Central Vermont R. Co., 91 Fed. 13 Johns. S37; Jackson, ex dem., etc. 696. Cf. Goodnow v. Pope, 31 Misc. v. Harper, 5 Wend. 246; Jackson v. Rep. 47S. Miller, 6 id. 228. 46 Whalin v. White, 25 N. Y. 462 ; b" Kenada v. Gardner, 3 Barb. 589. Cowley V. Cart, 44 id. 382. ^1 § 194, supra; Jackson v. Brush, *8 Taylor, Landl. & Ten. 121. 20 Johns. 5. Cf Moffatt v. Smith, \ « O'Donnell v. Mclntyre, 118 N. Y. N. Y. 126. 156; Austin V. Ahearne, 61 id. 6; ^^ § jp^-phe Real Prop. Law, jM/ira. Jones V. Clark, 20 Johns. 51 j Brown ^^ Ross v. Kernan, 31 Hun, 164. Tenant Must Notify Landlord of Real Actions. 623 § 195. Notice of action adverse to possession of tenant. — Where a process or summons in an action to recover the real property occupied by him, or the possession thereof, is served upon a tenant, he must forthwith give notice thereof to his landlord; otherwise he forfeits the value of three years' rent of such property, to the landlord or other person of whom he holds. Formerly i Revised Statutes, 748, section 27 : § 27. Every tenant to whom a declaration in ejectment, or any other proc- ess, proceeding or notice of any proceeding, to recover the land occupied by him, or the possession thereof, shall be served, shall forthwith give notice thereof to his landlord, under the penalty of forfeiting the value of three years rent of the premises so occupied by him, which may be sued for and recovered by the landlord or person of whom such tenant holds."* Comment on this Enactment. Since ejectment became a possessory action, the tenant in possession is always prima facie the real party in interest in actions of this nature.^" The tenant's possession is, prima facie, the landlord's possession.^" The landlords were, at an early time, deemed proper parties to this action and were let in to defend by statute;"^ but as an eject- ment might still be brought against the tenant alone by a stranger, in order to prevent collusion, the statute 11 George II, chapter 19, section 12, provided: "That every tenant to whom a declaration in ejectment shall be delivered shall give notice thereof to his land- lord, under penalty of forfeiting the value of three years improved, or rack, rent." This statute did not extend to the province of New York, but was re-enacted here in 1774,®* and from time to time thereafter,^* and thus passed into the Revised Statutes ** and the present law.*-' 54 Repealed, chap. 547, Laws of Laws of 1774; 2 J. & V. 241, § 30; 1896. Adams, Ejectment, 226. 55 Tyler, Ejectment, 442; §§ 1502, .58 Chap. 14, Laws of 1774. 1503, § 3343, subd. 20, Code Civ. 59 2 J. & V. 241, § 29; i K. & R. Proc. ; Fiero, Special Actions, chap. i. 134 ; i R. L. 443. 56Bedlow v. New York Floating 6<>i R. S. 748, § 27. Dry Dock Co., 112 N. Y. 263; Schnei- «i § 19s, supra; Stewart v. Smith, der V. Mali, 84 App. Div. 16. 4 Abb. Ct. App. Dec. 306, 307 ; Rigney 57 II Geo. II, § 13; chap. 14, N. Y. v. Coles, 6 Bosw. 479, 493. 624 Effect of Renewal on Sub-Lease. § 196. Effect of renewal on sub-lease. — The surrender of an under-lease is not requisite to the validity of the surrender of the original lease, where a new lease is given by the chief landlord. Such a surrender and renewal do not im- pair any right or interest of the chief landlord, his lessee or the holder of an under-lease, under the original lease; in- cluding the chief landlord's remedy by entry, for the rent or duties secured by the new lease, not exceeding the rent and duties reserved in the original lease surrendered. Formerly i Revised Statutes, 744, section 2: §2. If any lease be surrendered in order to be renewed, and a new lease be made by the chief landlord, such new lease shall be good and valid to all intents and purposes, without a surrender of all or any of the under leases derived out of such original lease so surrendered ; and the chief landlord, his lessee, and the holders of such under leases, shall enjoy all their rights and interests, in the same manner and to the same extent, as if the original lease had been still continued ; and the chief landlord shall have the same remedy by distress, or entry upon the demised premises for the rents and duties secured by such new lease, so far as the same do not exceed the rents and duties reserved in the original lease so surrendered.^* (Amended by chap. 274, Laws of 1846, abolishing distress.) 8* History of this Enactment. At common law a lease for lives or years could not be renewed without a surrender, not only of the lease itself, but of all the under leases which had been derived out of it; so that it was in the power of the under tenants to prevent or delay the renewal of the principal lease by refusing to surrender their under leases.®* But by statute 4 George II, chapter 28, sec- tion 6, this hardship was remedied, and the neW lessee was given remedies against the original sub-tenants, holding under the origi- nal demise. This statute being passed only in 173 1, did not extend to the province of New York. But it was re-enacted here in 1774.*" After " Independence " the statute was again re-enacted in the general revision of 1788,®^ and thence passed into subsequent re- visions,^^ and finally into the Revised Statutes®* and the present law.89 62 Repealed, chap. 547, Laws of ^K. & R. 134, § 26 ; i R. L. 442, 1896. § 26. 63 Conkey v. Hart, 14 N. Y. 22. 68 i R. S. 744, § 2; 4 Kent, Coram. 6* Archbold, Landl. & Ten. 64. 104. 65 Chap. 14, N., Y. Laws of 1774. 69 § 155^ supra. 662 J. & V. 233, § 26. Surrender. 625 Effect of Surrender of a Lease. The effect of such a surrender as between the parties is to merge the term. But the rights of strangers and sub-tenants are not thereby affected; they are pre- served, while the equitable rights of the original landlord against the under tenants are protected and secured by this statute.™ Surrender, how Made. A surrender of a demise for a term of years must now be in writing,^^ unless it have less than a year to run.''^ But a surrender may be implied from acts inconsistent with the relation of landlord and tenant.''^ Thus, the acceptance of a valid and complete new lease, contract, or deed of the fee, may operate as a surrender in law without an express surrender.'^* A surrender cannot be to a stranger.''^ Atandonment not a Surrender. An abandonment under a special law permitting lessees to vacate, is not a surrender.''^ Surrender does not Affect Rent Accrued. Where surrender takes ef- fect from a day certain, tenant is not relieved from rent then accrued and payable, even though a payment is for a time subse- quent to actual surrender." TOArchbold, Landl. & Ten. 84; 4 ^4 Bailey v. Delaplaine, i Sandf. s; Kent, Comm. 104 ; Weis v. Mendelson, Livingston v. Potts, 16 Johns. 28 ; 24 Misc. Rep. 692 ; O'Shinsky v. Van Rensselaer's Heirs v. Penni- Greenberg, 39 id. 342. Cf. Coe v. man, 6 Wend. 569; Schieffelin v. Car- Hobby, 72 N. Y. 141, 146; Ballou V. penter, 15 id. 400; Smith v. Niver, 2 Baxter, 28 N. Y. St. Rep. 431. Barb. 180; Bedford v. Terhune, 30 ''I § 207, The Real Prop. Law ; N. Y. 453 ; Coe v. Hobby, 72 id. 141 ; Rowan v. Lytle, 11 Wend. 616; Allen Chamberlain v. Dunlop, 126 id. 45 j V. Jaquish, 21 id. 628. Lewis v. Angermiller, 8g Hun, 65 ; ^2 Smith V. Devlin, 23 N. Y. 363; Underbill v. Collins, 132 N. Y. 269, Tallman v. Earle, 37 N. Y. St. Rep. 272; James v. Coe, 31 Misc. Rep. 653. 271 ; Sherman v. Engel, 18 Misc. Rep. '^5 Barkley v. McCue, 25 Misc. Rep. 484. 738. ■^3 Gray v. Kaufman Dairy, etc., '^s § 197, The Real Prop. Law ; Laws Co., 162 N. Y. 388 ; Dorrance v. Bone- of i860, chap. 345. steel, SI App. Div. 129; Warren v. "Kahn v. Simons, 25 Misc. Rep. Cochrane, 128 Fed. 553. 737; Barkley v. McCue, id. 738. 40 626 When Tenant May Surrender. § 197. When tenant may surrender premises. — Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be unten- antable, and unfit for occupancy, and no express agree- ment to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased or occupied; and he is not liable to pay to the lessor or owner, rent for the time subsequent to the surrender. Formerly chapter 34s, Laws of i860: An Act in relation to the rights and liabilities of owners and lessors, and of lessees and of occupants of buildings. Passed April 13, x86o. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. The lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed, or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant, and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied. § 3. This act shall take effect immediately .''f* Common Law. At common law, if a lease contain no provision to the contrary, and there is a covenant to pay rent, the tenant can be compelled to pay rent though the buildings are destroyed by fire^* or lightning^" provided such destruction was not before entry ,*^ and the lease covers the ground.®^ The landlord is not obliged to rebuild in the absence of an express covenant so to do,®* nor can he be compelled to rebuild by an action in equity, even if there is a covenant to rebuild.®* A covenant to rebuild, if ex- T8 Repealed, chap. 547, Laws of 81 Wood v. Hubbell, 5 Barb. 601. 1896. ^ Graves v. Berdan, 26 N. Y. 498 ; TSHallett V. Wylie, 3 Johns. 44; Doupe v. Genin, 45 id. 119, 123. Gates v. Green, 3 Paige, 355; Graves 8* Doupe v. Genin, 45 N. Y. 119; V. Berdan, 26 N. Y. 498, 501. Smith v. Kerr, 108 id. 31, 34. 80 Babcock v. The Montgomery Co. ** Beck v. Allison, 56 N. Y. 366. Mut. Ins. Co., 4 N. Y. 326. When Tenant May Surrender. 627 press, binds personal representatives.*" An ordinary covenant to repair is not, however, a covenant to rebuild.*^ Landlord's Obligations. Unless there is a covenant to repair the landlord is under no obligation to repair.^'' In leasing real prop- erty there is no implied covenant that the premises are fit for habitation. The tenant hires at his peril.** But if the premises are infected the landlord is bound to disclose it.*^ In recent law there seems to be a disposition to depart from the hard and fast principles indicated, and the case of Meserole v. Sinn has been criticised by the profession as such an unwarranted departure;^ for if tenants may abandon premises after entry for want of repair, the landlord is constructively bound to repair, and this is not the law. Tenant's Obligations. If tenant covenants to repair, he is of course bound; and if a lease is silent as to repairs and there is a building on the premises, the tenant is required to keep the same in repair and suffer no waste.*'^ With this statement of elementary princi- ples we are prepared to consider the effect of this section of this act. The Statute of i860. The statute of i860 introduced a new rule in the construction of leases, the benefit of which may be waived, if the parties themselves covenant in respect of the matters controlled 8B Chamberlain v. Dunlop, 126 N. 161 N. Y. S9 ; Carey v. Kreizer, 26 Y. 45. Misc. Rep. 755; Jaffe v. Harteau, 56 88 Butler V. Kidder, 87 N. Y. 98; N. Y. 398; Watson v. Almirall, 61 Ducker v. Del Genovese, 93 App. Div. App. Div. 429. 575. Cf. Allen V. Culver, 3 Den. 284 ; ^ Cesar v. Karutz, 60 N. Y. 229. Mcintosh V. Lown, 49 Barb. 550; May Cf. Daly v. Wise, 132 id. 306. V. Gillis, 169 N. Y. 330. 90 161 N. Y. 359. Cf. Lenz v. Al- 87 Witty V. Matthews, 52 N. Y. 512 ; drich, 6 App. Div. 178; Mayor v. Brenner v. Walter, 15 App. Div. 295 ; Laux, 18 Misc. Rep. 671 ; Felton v. Ely V. Fahy, 79 Hun, 65 ; Watson v. City of Cincinnati, 95 Fed. 336 ; Wat- Almirall, 61 App. Div. 429; Cas- son v. Almirall, 61 App. Div. 429; taquette v. Nicchia, 76 id. 371 ; Wynne Davis v. Banks, 32 Super. Ct. 184. V. Haight, 27 id. 7; Laird v. Mc- ^i Ri^e v. Culver, 172 N. Y. at p. George, 16 Misc. Rep. 70. 65; May v. Gillis, 53 App. Div. 393; *8Daly V. Wise, 132 N. Y. 306; Lynch v. Sauer, 16 Misc. Rep. i; Franklin v. Brown, 118 id. no; Lockrow v. Horgan, 58 N. Y. 635; Sherman v. Ludin, 79 App. Div. 37; Franklin v. Brown, 118 id. no, 113; Prahar v. Tousey, 93 id. 507. McCarthy v. Ely, 4 E. D. Smith, 375. Cf. Meserole v. Sinn, 34 id. 33, 35, 628 When Tenant May Surrender. by the statute in the absence of such covenant.*^ But a mere cove- nant to repair is not a waiver of the benefit of the statute.^^ Where the building is destroyed by fire, or rendered unfit for occupation, under this act, the tenant must surrender possession in order to escape hability,*^ and such surrender must be within a reasonable time.^ A notice of abandonment from the tenant to the landlord is unnecessary; the statute dissolves the relation unless the tenant elects to continue it.*" The statute was intended to modify the rigor of the common law, and not to create a new relation or con- tract.*^ It has been held that this act applies to sudden destruction by the elements, and not to a gradual deterioration by ordinary ac- tion of the elements.*^ It is, however, claimed that the authority of the leading case on the last point stated is much shaken by a more recent adjudication.®® But it certainly would seem that Suy- dam V. Jackson is founded on principle.^ Where the tenant gives notice that he elects to terminate the lease and stops on to protect his property, it seems that he does not thereby waive the benefit of this statute.^ 92 N. Y. R. K, etc., Co. v. Motley, v. Morton, 31 App. Div. 469; Brown- 143 N. Y. 156; Nimmo v. Harway, 23 ing v. Garvin, 48 id. 140. Misc. Rep. 126 ; Butler v. Kidder, 87 ^ Fleischman v. Toplitz, 134 N. Y. N. Y. 98; Tocci V. Powell, 9 App. 349; Smith v. Kerr, ic8 id. 31, 34. Div. 283 ; Roman v. Taylor, 93 id. ^^ Suydam v. Jackson, 45 N. Y. 449; Lehmeyer v. Moses, 67 id. 531. 450; Chadwick v. Woodward, 13 Abb. Cf. Witty V. Matthews, 52 N. Y. 512; N. C. 441; Connor v. Bemheimer, 6 N. Y., etc., Imp. Co. v. Motley, 20 Daly, 295; Lansing v. Thompson, 8 N. Y. Supp. 947; Achlers v. Reh- App. Div. S4- linger, i City Ct. Rep. 79. ®* Suydam v. Jackson, 54 N. Y. ®3 Butler v. Kidder, 87 N. Y. 98; 450, and see this point discussed be- N. Y., etc., Co. V. Motley, 143 id. 156; low under this section. Warner v. Hitchins, S Barb. 666 ; U. 99 Tallman v. Murphy, 120 N. Y. S. V. Bostwick, 4 Otto (U. S.), 53. 345; Meserole v. Sinn, 34 App. Div. M Johnson v. Oppenheim, 55 N. Y. at p. 35, 161 N. Y. 59. 280, 28s ; Smith v. Kerr, 108 id. 31, 1 Cf. Crawford v. Redding, 8 Misc. 34; Danziger v. Falkenberg, 18 N. Y. Rep. 306; Steefel v. Rothschild, 64 Supp. 927; Copeland v. Luttgen, 17 App. Div. 293, 295; May v. Gillis, 169 Misc. Rep. 604; Lansing v. Thomp- N. Y. 330; Sherman v. Ludin, 79 son, 8 App. Div. 54. App. Div. 37; Lockrow v. Horgan, 58 95 Bassett v. Dean, 34 Hun, 250 ; N. Y. 635 ; Moflfatt v. Smith, 4 id. Copeland v. Luttgen, 17 Misc. Rep. 126; McGlashan v. Tallmadge, 37 604; Stein V. Rice, 23 id. 348. As to Barb. 313. what is a reasonable time, see Decker 2 Decker v. Morton, 31 App. Div. 469. When Tenant May Surrender. 629 Causes for Surrender. Dampness may render the building unten- antable, within this act, if injurious to heahh;^ so offensive odors;* very defective plumbing in apartment houses;^ defectively con- structed heating apparatus in apartment houses.^ Apartment houses seem to stand on a separate legal footing in some respects.^ But it must be remembered that acts constituting an eviction do not depend on this statute.® Tenant Must Act Promptly. If tenant wish to abandon under this act he must act promptly.® When this Section does not Apply. This act refers to a destruction, or injury, resulting from some sudden and unexpected action of the elements, and not to gradual deterioration and decay.^" We have referred to this principle before iinder this section. It seems to some extent deviated from in the case of Meserole v. Sinn.'^ There, at the time of the lease, the premises were in such a state that by gradual deterioration they permitted heavy rains to soak in. The tenant had entered and the landlord was under no obliga- tion to repair. Yet the tenant was allowed to abandon under this section of this act, notwithstanding the deterioration was gradual. 3 Franke v. Youmans, 17 Week. Graves v. Berdan, 26 N. Y. 498; Dig. 252. Marks v. Dilaglio, 27 Misc. Rep. 672. * Tallman v. Murphy, 120 N. Y. ^ Hamilton v. Graybill, 19 Misc. 345; Lathers v. Coates, 18 Misc. Rep. Rep. 521; Wyse v. Russell, 16 id. 53; 231, and cases there cited. Cf. Sut- Boreel v. Lawton, 90 N. Y. 293; Sully phen V. Seebass, 14 Abb. N. C. 67, v. Schmitt, 147 id. 248; Huber v. n. ; Coulsen v. Whiting, id. 60. Ryan, 26 Misc. Rep. 428 ; Marks v. 6 Lathers v. Coates, 18 Misc. Rep. Delaglio, 27 id. 657; Majestic Hotel 231 ; Bradley v. De Goicouria, 14 Co. v. Eyre, 53 App. Div. 273, 274. Abb. N. C. S3 ; Fitch v. Armour, 49 ® Marks v. Dellagio, 32 Misc. Rep. N. Y. St. Rep. 246. Cf. Chadwick v. 94, 56 App. Div. 299; Seabird Realty Woodward, 13 Abb. N. C. 441 ; Thai- Co. v. Fuller, 33 Misc. Rep. 109. heimer v. Lempert, 17 N. Y. St. Rep. i" Lansing v. Thompson, 8 App. 346; Strauss v. Hamersley, 37 id. Div. 54; Suydam v. Jackson, 54 N. Y. 749; s. c, 13 N. Y. Supp. 816; Stein 450; Edwards v. McLean, 122 id. 302, V. Rice, 23 Misc. Rep. 348. 308. 6 O'Gorman v. Harby, 18 Misc. ^^ 34 App. Div. 33 ; affd., 161 N. Y. Rep. 228; Lawrence v. Burrell, 17 59. Cf Tallman v. Murphy, 120 id. Abb. N. C. 312. 345 ; Majestic Hotel Co. v. Eyre, 53 ■^ Fitch v. Armour, 39 N. Y. St. App. Div. 273 ; Steefel v. Rothschild, Rep. 246 ; see note 20 Abb. N. C. 64 id. 293, 295 ; May v. Gillis, 169 330 ; Gale v. Heckman, 16 Misc. Rep. N. Y. 330 ; Prahar v. Tousey, 93 App. Z76 ; Stewart v. Frost, 15 id. 621 ; Div. 507. 630 When Tenant May Surrender. It is to be hoped in the interests of the stability of landed property that this line of authority will not go farther. This section cannot apply where the tenant, before entry, knew the premises to be un- tenantable,^^ or presumably where tenant enters under a cove- nant to repair ;^^ and even without covenant tenant is obliged to make ordinary repairs.^* Tenant not Released from Accrued Rent. This act does not release tenant from rent accrued at the time of the cessation of the ten- ancy;-'^ semble, otherwise as to rent paid in advance.^® 12 Alsheimer v. Krohn, 45 How. i, 3; Franklin v. Brown, 118 N. Y. Pr. 127; Watson v. Almirall, 61 App. no, 113; supra, p. 627. Div. 429 ; Sherman v. Ludin, 79 id. l^ Cheesebrough v. Lieber, 18 37; Prahar v. Tousey, 93 id. 507. Misc. Rep. 459; Craig v. Butler, 8j 1* Sheary v. Adams, 18 Hun, 181 ; Hun, 286. Cf. Hecht v. Heerwagen, Suydam v. Jackson, 54 N. Y. 540. 13 Misc. Rep. 316; Kelly v. Part- But see May v. Gillis, 53 App. Div. ridge, 4 id. 205; Craig v. Butler, 156 393; revd., 169 N. Y. 330. N. Y. 16. 1* Lynch v. Sauer, 16 Misc. Rep. ^^ Werner v. Padula, 29 Misc. Rep. 400. Notice to Terminate Tenancies at Will. 631 § 198. Termination of tenancies at will or by sufferance by notice A tenancy at will or by sufferance, however cre- ated, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by afifixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain ejectment, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit. Formerly I Revised Statutes, 745, sections 7, 8 and 9: § 7. Wherever there is a tenancy at will, or by sufferance created, by the tenant's holding over his term, or otherwise, the same may be terminated by the landlord's giving one month's notice in writing to the tenant, requir- ing him to remove therefrom.^'' § 8. Such notice shall be served by delivering the same to such tenant, or to some person of proper age residing on the premises ; or if the tenant can not be found, and there be no such person residing on the premises, such notice may be served by affixing the same on a conspicuous part of the premises, where it may be conveniently read.^* § 9. At the expiration of one month from the service of such notice, the landlord may re-enter, or maintain ejectment, or proceed in the manner prescribed by law, to remove such tenant, without any further or other notice to quit.i^ Tenancy at Will or by Sufieiance, how Determined. What constitutes a tenancy at will, or by sufferance, has been already noticed under the section enumerating estates.^" At common law a tenancy by sufferance might be determined by mere entry.^^ Independently of statute tenant by sufferance is not entitled to notice to quit. This was the law of this State until 1820, when an act was passed 1^ Repealed, chap. 547, Laws of ^ § 20, The Real Prop. Law, supra, 1896. p. IS- IS Repealed, chap. S47, Laws of 21 Archbold, Landl. & Ten. 78 ; i8g6. Jackson ex dem. v. Bryan, i Johns. 19 Repealed, chap. 547, Laws of 322 ; Jackson v. Parkhurst, s id. 128 ; i8g6. Jackson v. McLeod, 12 id. 182 ; Reck- how V. Schanck, 43 N. Y. 448, 451. 632 Notice to Terminate Tenancies by Sufferance. requiring three months' notice, in writing, to such tenant, before summary proceedings could be instituted for an unlawful holding Qygj. 22 -pj^g Revised Statutes incorporated the statute of 1820, in substance, in the foregoing sections,^^ and, at the present time, tenancies at will and by sufiferance are to be terminated by notice under this section.^* The Revised Statutes. The Revised Statutes formerly declared certain trustees or tenants for life or lives holding over to be trespassers^ and a notice to quit under section "f^ was held inap- plicable to one so holding over.^'^ But a holding over of tenants for years may ripen into a tenancy by sufiferance, where it is con- tinued for such a time and under such circumstances as to authorize the implication of an assent by the landlord.^* Application of Section 198, Supra. This section applies to tenancies at will and by sufiferance only.^' A holding over is still made un- lawful, at landlord's option; but this section does not apply to un- lawful tenures,^" or to trespassers,^^ and to like occupants. This section may, however, apply to a case where one enters by consent under a void lease for years.^^ 22 Chap. 194, Laws of 1820, p. 177. 23 1 R. S. 745, §§ 8, 9. See note of Revisers to original section of i R. S. 74s. 2*§ 198, The Real Prop. Law; Bristor v. Burr, 12 N. Y. St. Rep. 638; Burns v. Bryant, 31 N. Y. 453; Lamed v. Hudson, 60 id. 102; Post V. Post, 14 Barb. 253; Nowlan v. Trevor, 2 Sweeny, 67; Klingenstein v. Goldwasser, 27 Misc. Rep. 536. 25 I R. S. 749, § 7, now repealed and re-enacted, § 1664, Code Civ. Proc. ; but § 200, The Real Prop. Law, still makes a holding over of tenant for years unlawful. ^6 Supra, I R. S. 745- 27 Livingston v. Tanner, 14 N. Y. 64. 28 Smith v. Littlefield, 51 N. Y. S39. Cf. Coudert v. Cohn, 118 id. 309; Talamo v. Spitzmiller, 120 id. 37; Adams v. City of Cohoes, 127 id. 175- 29 Rowan v. Lytle, 11 Wend. 616. Note to § 64, Taylor, Landl. & Ten. ; Burns v. Bryant, 31 N. Y. 453; Smith V. Littlefield, 51 id. 529; Lamed v. Hudson, 60 id. 102; Mor- gan V. Powers, 83 Hun, 298; Adams v. City of Cohoes, 127 N. Y. 183, 184; Hungerford v. Wagoner, 5 App. Div. 590; Burkhart v. Tucker, 27 Misc. Rep. 724, 726. 30 § 200, The Real Prop. Law, et ut supra. 31 Reckhow v. Schanck, 43 N. Y. 448, 451 ; Burkhart v. Tucker, 27 Misc. Rep. 724, 726. 32 Prindle v. Anderson, 19 Wend. 391 ; People ex rel., etc. v. Darling, 47 N. Y. 666; Reeder v. Sayre, 70 id. 180; People v. Rickert, 8 Cow. 226, 231; Coudert v. Cohn, 118 N. Y. 309. Cf. Jackson v. Rogers, i Johns. Cas. 33; s. c, 2 Cai. Cas. 314; Jack- son V. Cuerden, 2 Johns. Cas. 353 ; Jackson v. Ellis, 13 Johns. 118; Notice to Terminate Tenancies at Will. 633 Section 198 does flot Apply to Tenancies from Year to Year. This sec- tion does not apply to definite tenancies from year to year, and a tenant from year to year is not entitled to notice to quit before ejectment or summary proceedings,^^ although it has been said that a formal half-year's notice to quit may be necessary to terminate a tenancy from year to year.^* The eflect of notice is regulated by the next sections.^® Where a tenant for years, without notice, holds over, the law, in the absence of special circumstances, im- plies an agreement to hold for another year, on terms of lease, at landlord's option;^® and the tenancy then ends at the expiration of the year held over, without notice.^'^ Contents of Written Notice. A written notice, though it specify a wrong date, is good thirty days after service under this section.'* It may be served by any one designated by the landlord,'® and it seems must contain a warning of summary proceedings for default Craske v. The Christian Union Pub. Co., 17 Hun, 319; Hungerford v. Wagoner, s App. Div. 59°; People ex rel., etc. v. Darling, 47 N. Y. 666; Talamo v. Spitzmiller, 120 id. 37 ; Prindle v. Anderson, 19 Wend. 391 ; Adams v. City of Cohoes, 127 N. Y. 175- 3' Nichols V. Williams, 8 Cow. 13 ; Post V. Post, 14 Barb. 253; Park v. Castle, 19 How. Pr. 29; Adams v. City of Cohoes, 127 N. Y. 175; Cox V. Sammis, $7 App. Div. 173. 3* Pugsley V. Aikin, 11 N. Y. 494; Reeder v. Sayre, 70 id. 180, 186; Hun- gerford V. Wagoner, s App. Div. sgo, 592; Merritt v. Merritt, 3 N. Y. St. Rep. 484; Nowlan v. Trevor, 2 Sweeny, 67, 70. Cf. Rorbach v. Cros- sett, 46 N. Y. St. Rep. 426; Coudert V. Cohn, 118 N. Y. 309; Talamo v. Spitzmiller, 120 id. zy ; Park v. Castle, 19 How. Pr. 29; Jackson ex dem., etc. V. Bryan, i Johns. 322. 35 §§ 199, 200, The Real Prop. Law. At common law, though no notice was necessary for a term certain, it was necessary, if the landlord wished to recover, for a holding over, a double penalty under the statute. Comyn, Landl. & Ten. 350. 5® Conway v. Starkweather, i Den. 113; Schuyler v. Smith, 51 N. Y. 309 ; Ackley v. Westervelt, 86 id. 448 ; Haynes v. Aldrich, 133 id. 287; Her- ter V. Mullen, 9 App. Div. 593; Cram v. Springer Lith. Co., 10 Misc. Rep. 660; Garrick v. Menut, 41 N. Y. St. Rep. 46; Wood V. Gordon, 44 id. 640. 37 Rorbach v. Crossett, 46 N. Y. St. Rep. 426; Adams v. City of Cohoes, 127 N. Y. 17s; Witt V. Mayor, etc.. 5 Robt. 248. Cf. McKay v. Mumford, 10 Wend. 351, 3S3 ; Crouch v. Trimby, etc., 83 Hun, 276; Frost v. Akron Iron Co., 12 Misc. Rep. 348; People ex rel. Botsford v. Darling, 47 N. Y. 666; Luger v. Goerke, 18 App. Div. 291. 38 Burns v. Bryant, 31 N. Y. 453 ; People V. Shackno, 48 Barb. 551 ; Nowlan v. Trevor, 2 Sweeny, 67. Cf. Morgan v. Powers, 83 Hun, 298. 39 Simpson v. Masson, 11 Misc. Rep. 351. 634 Notice to Terminate Tenancies at Will. of removal,** although no particular form is necessary.*^ The effect of notice may be waived by subsequent unqualified accept- ance of rent.*2 The notice does not dissolve the relation so as to enable tenant to deny landlord's title.*^ The tenant may waive the right to notice by his conduct.** When Monthly Tenant Entitled to Five Days' Notice. A monthly ten- ant is entitled to five days' notice before summary proceedings can be begun in the cities of New York and Brooklyn to dispossess for holding over the term.*^ But not where tenant gives notice of surrender.** A notice of thirty days is not necessary where the tenancy is from month to month.*'' Ejectment. Under the Code of Civil Procedure, where six months' rent is in arrear on a lease, ejectment lies without any demand.*® Subdivision 2, Section 2231, Code of Civil Procedure. Where the pro- ceeding is to dispossess, under subdivision 2 of section 2231, Code of Civil Procedure, a demand for the payment of rent, without any notice, is sufficient.*® 40 Folz V. Shalow, 16 N. Y. Supp. ** Hoske v. Gentzlinger, 87 Hun, 3. 942. *^ People ex rel. Oldhouse v. 41 Adams v. City of Cohoes, 127 Goelet, 64 Barb. 476. Cf. Hunger- N. Y. at p. 184. ford v. Wagoner, 5 App. Div. 590. 42 Prindle v. Anderson, 19 Wend. ** § 1504, Code Civ. Proc. ; Martin 391. v. Rector, 118 N. Y. 476. 43 Littel V. Wright, 122 Fed. 434. ** Heinrich v. Mack, 25 Misc. Rep. 44 Wissel V. Ott, 34 App. Div. 159. 597 ; Boyd v. Milone, 24 id. 734. 46 Chap. 303, Laws of 1882 ; amd., chap. 357, Laws of 1889. / Liability of Tenant Holding Over. 635 § 199. Liability of tenant holding over after giving notice of intention to quit — If a tenant gives notice of his intention to quit the premises held by him, and does not accordingly deliver up the possession thereof, at the time specified in such notice, he or his personal representatives must, so long as he continues in possession, pay to the landlord, his heirs or assigns, double the rent which he should otherwise have paid, to be recovered at the same time, and in the same manner, as the single rent. Formerly I Revised Statutes, 745, section 10: § 10. If any tenant shall give notice of his intention to quit the premises by him holden, and shall not accordingly deliver up the possession thereof, at the time in such notice specified, such tenant, his executors or adnflnis- trators, shall, from thenceforward, pay to the landlord, his heirs or assigns, double the rent which he should otherwise have paid, to be levied, sued for and recovered, at the same time and in the same manner, as the single rent; and such double rent shall be continued to be paid during all the time such tenant shall continue in possession as aforesaid.^ Origin of Section 199, Supra. This provision of The Real Property Law was originally taken from an act of parliament.^' It was re- enacted here only in 1774,^^ the act 11 George II not theretofore extending to New York. After independence of the Crown the State Legislature formally re-enacted the provision in 1788.^^ Thence, through the two subsequent revisions of the statutes,®* it passed into the Revised Statutes,^^ and is now incorporated in the present law.®* Practice. Before the Codes of Procedure (and the overthrow of equity as a distinct practice), as the statute provided that double rent might be recovered in the same manner as the single rent, the landlord could maintain an action of debt, or if on a parol demise, assumpsit, or he might even distrain for it.®^ Since the abolition of distraint and of the distinction between suits in equity and ac- tions at law, the landlord can only maintain the one form of action provided by the Code for all penalties or forms of indebted- ^0 Repealed, chap. 547, Laws of 5* i K. & R. 134, § 22 ; i R. L. 440, i8g6. § 22. 51 II Geo. 11, chap. 19, § 18. ^5 j r. s. 745, § 10. 52 Chap. 14, Laws of 1774. 66 § igp^ xhe Real Prop. Law. 63 2 J. & V. 238, § 22; Regan v. ®T Comyn, Landl. & Ten. 352. Fosdick, 19 Misc. Rep. 489, 491. 636 Liability of Tenant Holding Over. ness. Rent defaults only are remedied by summary proceedings to recover possession of the demised premises, and the penalty cannot be recovered in proceedings to dispossess. Parol Lease and Notice. A lease by parol is a holding within this statute,^^ and a parol notice of quitting is sufficient to render tenant liable to double rent in case he hold over.^® Landlord's Remedies. Even though the tenant gives notice to quit, if he hold over, the landlord may treat the tenant either as a tres- passer, or waive the penalty and treat him as holding under an implied tenancy for another year.*** Application of this Section igg. It was thought that this section applies, and that tenant is liable for double rent even where hold- ing over is occasioned by sickness*^ or superior stress, but this doctrine has been qualified of late, and in a way not favorable to landlords.*^ Partners. Where partners are tenants, and one holds over after partnership expires, he, and not the others, is liable.** Holding Over under Privilege. Where the lease is for two years, with privilege of three more upon a written notice from tenant, and tenant holds over without serving notice, the holding over is an election to avail of the option,** and not a holding over under the statute. 58 Burr. 1603. Ketcham v. Ochs, 34 Misc. Rep. 470, 59 Burr. 1603 ; and see Comyn, 472. Landl. & Ten. 352, on this statute. ^^ Herter v. Mullen, 9 App. Div. 6'> Haynes v. Aldrich, 133 N. Y. 593 ; revd., 159 N. Y. 28 ; s. c, 52 287 ; Vosburgh v. Corn, 23 App. Div. App. Div. 325 ; Preiser v. Wielandt, 147 ; Conway v. Starkweather, i Den. 48 id. 569 ; Weber v. Rogers, 41 Misc. 113. But the privilege is not recipro- Rep. 662. Tliis last case to a real cal. Merritt v. Merritt, 3 N. Y. St. property lawyer will seem confiscation Rep. 484. of landlord's property. 81 Herter v. Mullen, g App. Div. ^3 James v. Pope, 19 N. Y. 324 ; 393; Regan v. Fosdick, 18 Misc. Rep. Buchanan v. Whitman, 151 id. 253, 556; s. c, 23 id. 623; Haynes v. Al- 257; Mason v. Tietig, 23 Misc. Rep. drich, 133 N. Y. 287. Cf. Hammond 443. V. Eckhartt, 30 N. Y. St. Rep. 856; e* Bailie v. Plant, 11 Misc. Rep. 30. Tenant Holding Over After Notice to Quit. 637 § 200. Liability of tenant holding over after giving® notice to quit — Where, on the termination of an estate for life, or for years, the person entitled to the possession demands the same, and serves, in the same manner as for the ter- mination of a tenancy at will, a written notice tO' quit, if the tenant, or any person in possession under him, or by collusion with him, willfully holds over, after the expira- tion of thirty days from such service, he must pay to the person so kept out of possession, or his representatives, at the rate of double the yearly value of the property detained, for the time while he so detains the same, together with all damages incurred by the person so kept out by reason of such detention. There is no equitable defense or relief against a demand accrued, or a recovery had, under this section. Formerly i Revised Statutes, 74s, section 11: § II. If any tenant, for life or years, or if any other person who may have come into possession of any lands or tenements, under or by collusion with such tenant, shall wilfully hold over any lands or tenements after the ter- mination of such term, and after demand made and one month's notice, in writing, given in the manner herein before prescribed, requiring the pos- session thereof by the person entitled thereto, such person so holding over shall pay to the person so kept out of possession, or his representatives, at the rate of double the yearly value of the lands or tenements so detained, for so long a time as he shall so hold over or keep the person entitled, out of possession ; and shall also pay and remunerate all special damages what- ever, to which the person so kept out of possession may be subjected by reason of such holding over; and there shall be no relief in equity against any recovery had at law under this section.66 Origin of Section 200, Supra. The tenant's neglect to deliver up demised premises after notice to quit and the expiration of the demise was remedied in England by a statute giving double rent.®'^ This statute, not extending to New York, was enacted here in 1774.68 It was again re-enacted in 1788, in the first great revision of the English statutes extended to New York.^® Thence it passed through several other revisions of the State laws.™ In 1820 it was 65 This word "giving" should have ^''4 Geo. 11, chap. 28, § i. been omitted in caption of this sec- ^^ Chap. 14, Laws of 1774. tion. 69 2 J. & V. 238, § 21. 66 Repealed, chap. 547, Laws of ™ i K. & R. 134, § 21 ; i R. L. 440, 1896. § 21. 638 Tenant Holding Over After Notice to Quit. amended," and then adopted by the Revised StatutesJ^ From the Revised Statutes it was incorporated in the present law.''^ Thus, with the exception of the clause taken from the amendment of 1820, giving special damage in addition to double rent, this section under consideration is virtually the act of 4 George II, chapter 28. Construction of this Section 200. It has been held, in England, that a weekly tenant, although strictly " a tenant for years," is not within this statute, which is penal and to be strictly construed^* Whether, therefore, this statute extends in New York to monthly tenants, entitled under special laws to five days' notice, may be doubtedJ^ When Section Does Not Apply. Nor does the Statute extend to those cases where tenants maintain possession in good faith and not willfully in violation of clear legal right.'^ Where Tenant Holds Over. Where the landlord does not serve no- tice and tenant voluntarily holds over, the latter now holds, at landlord's election, upon an implied tenancy for a year;" and if the landlord accepts rent, he cannot then terminate tenancy before the end of such year, under this section. Where the landlord serves notice to quit and tenant non obstante voluntarily holds over, the landlord may then elect to treat the tenant either as a trespasser. Ti Chap. 194, Laws of 1820, § 8. 593; revd., 159 N. Y. 28, again 52 This amendment gave special dam- App. Div. 325; Haynes v. Aldrich, ages in addition to double rent. 133 N. Y. 287 ; Hausaer v. Dahlman, ^2 I R. S. 74S, § II. 18 App. Div. 475; Ketcham v. Ochs, ■^3 Supra, § 200, The Real Prop. 34 Misc. Rep. 470, 472. Law. "Johnson v. Doll, 11 Misc. Rep. T* Lloyd V. Rosbee, 2 Camp. 453. 345 ; Haynes v. Aldrich, 133 N. Y. '5 Chap. 303, Laws of 1882 ; amd., 287 ; Cram v. Springer Lith. Co., 10 chap. 357, Laws of 1889. Cf. People Misc. Rep. 660; Frost v. Akron Iron ex rel. Auldhause v. Goelet, 64 Barb. Co., i App. Div. 449 ; Farrell v. Man- 476. hattan Railway Co., 43 id. 143 ; Sul- TBComyn, Landl. & Ten. 349; Hall livan v. Ringler & Co., 59 id. 184. V. Ballantine, 7 Johns. 536. Cf. (See an exception where tenant in Mumford v. Brown, i Wend. 52 ; Mc- common is member of lessee firm Kay V. Mumford, 10 id. 351, as to holding over. Valentine v. Healey, tenants in common; and under 178 N. Y. 391). Cf. Adams v. City another statute, 11 Geo. H, chap. 19 of Cohoes, 127 N. Y. 175; McKay v. (row § 199, The Real Prop. Law). Mumford, 10 Wend. 351, 353; Luger See Regan v. Fosdick, 18 Misc. Rep. v. Goerke, 18 App. Div. 291. 556; Herter v. Mullen, 9 App. Div. Liability of Tenant Holding Over After Notice. 639 or as in lawful possession for another year on an implied demise on the same terms.'® But where the landlord's notice is, in effect, that if tenant hold over, the rent will be increased to a sum speci- fied, and tenant holds over, it seems he is liable for the rent speci- fied in the notice, and not under the statute.™ Elsewhere than in the city of New York if tenant for less than a year hold over, it is for a term of equal duration.^" Lease for Lives Begins Day after its Date. A lease for lives does not include the day of its date, but begins from the' following day.^^ When Lease for Years Begins and Expires. When a lease for years begins and ends, has been a subject of some diversity of opinion in England and this country. But when a lease for a year has been practically construed to commence on the day of its date by taking possession, that day is included in computing the year, and the term expires at midnight on the preceding day in the next year.*^ But ordinarily the day from which a lease begins is ex- cluded in the reckoning.®* If the lease expire on Sunday the ten- ant has until the following day to remove.®* Custom of New York City. Where a lease expires on May first by custom of the city of New York, it expires at noon of that day.®^ '® Schuyler v. Smith, 51 N. Y. 309. ®i Challis, 83. Cf 2 Sugd. Pow. Cf. Herter v. Mullen, 159 id. 28, 344. again, 52 App. Div. 325; Beeston v. 82 Buchanan v. Whitman, 151 N. Y. Yale, 75 id. 388. 253, and cases there cited. '3 Frost V. Akron Iron Co., 12 ®* Hungerford v. Wagoner, 5 App. Misc. Rep. 348; revd., i App. Div. Div. 590. 449. Cf. Mitchell V. Clary, 20 id. 595. ®* Frost v. Akron Iron Co., i App. 8" Ketcham v. Ochs, 34 Misc. Rep. Div. 449, 453. 470- ®® Frost v. Akron Iron Co., i App. Div. 449, 453, 454. 640 Landlord's Liability for Unlawful Occupation. § 201. Liability of landlord where premises are occupied for unlawful purposes. — The owner of real property, knowingly- leasing or giving possession of the same to be used or occupied, wholly or partly, for any unlawful trade, manu- facture or business, or knowingly permitting the same to be so used, is liable severally, and also jointly with one or more of the tenants or occupants thereof, for any damage resulting from such unlawful use, occupancy, trade, manu- facture or business. Note. — This section purports to be taken from section 2, chapter 583, Laws of 1873,8^ which is as follows : § 2. The owner or owners of any building or premises knowingly leas- ing or giving possession of the same, to be used or occupied, in whole or in part, for any illegal trade, manufacture or business, or knowingly permit- ting the same to be used for any illegal trade, manufacture or business, shall be jointly and severally liable with the tenant or tenants, occupant or occupants, for any damage that may result by reason of such illegal use, occupancy, trade, manufacture or business.®'' Comment on Section 201. This section re-States a general principle of the common law that injuria et damnum combined give a right of action for damages.*^ Upon general principles a contract which provides for anything contrary to law is void,^' and a lease of premises to be used for immoral purposes is void.®* If the lessor of premises knows and intends that they will, or may be, used for unlawful purposes the lease is void.®^ This act seems to enlarge the common-law liability of owners of real estate, and to give a right of action to third persons in exceptional cases of damage incurred. 86 Note of Commissioners of Statu- ^^ Taylor, Landl. & Ten., § 521. tory Revision to this section of The ^ Ernst v. Crosby, 140 N. Y. 364. Real Prop. Law. Appendix I, infra. Cf. Gilhooly v. Washington, 4 Super. 87 C/. chap. 646, Laws of 1873, as to Ct. 330; affd., 4 N. Y. 217; supra, sales of liquor, " an act to suppress p. 610. intemperance, pauperism and crime." ^ Ernst v. Crosby, 140 N. Y. at 88 See Broom, Common Law, chap. 3. p. 367. Duration of Defective Leases in New York City. 641 § 202. Duration of certain agreements in New York. — An agreement, for the occupation of real property in the city of New York, which shall not particularly specify the duration of the occupation, shall be deemed to continue until the first day of May, next after the possession com- mences under the agreement; and rent thereunder is pay- able at the usual quarter days, for the payment of rent in that city, unless otherwise expressed in the agreement. Formerly i Revised Statutes, 744, section i : § I. Agreements for the occupation of lands or tenements, in the city of New York, which shall not particularly specify the duration of such occupation, shall be deemed valid until the first day of May next after the possession under such agreement shall commence, and the rent under such agreement shall be payable at the usual quarter days for the payment of rent in the said city, unless otherwise expressed in the agreement.^^ Origin and Construction of Section 202, Supra. The substance of this section was first enacted in 1820.®^ This section has no reference to monthly tenancies.®^ It controls only those agreements for the occupation of real property in the city of New York which are silent or incomplete, in the particulars denoted in the statute.^ Under this statute the tenancy, where no term is specified, ends at midday of the first of May succeeding entry, and no notice to quit is necessary .^^ The rent is payable quarterly where no time of payment is agreed on,*'' unless a contrary custom is established in regard to the particular tenancy.®* This Section Does not Apply to a Holding Over by Tenant for Years. This section cannot have any reference to a holding over by tenant for years in the city of New York. Such holding over is always 92 Repealed, chap. 547, Laws of 173, 176; Taggart v. Roosevelt, 2 id. 1896. 100, 105 ; s. c, 8 How. Pr. 141 ; Galew- 93 Chap. 194, Laws of 1820, § 4. sky v. Applebaum, 32 Misc. Rep. 203 ; 9* Olson V. Schevlovitz, 91 App. Bernstein v. Lightstone, 36 id. 193. Div. 405. Cf. Wilson v. Taylor, 8 Daly, 253 ; 95 Craske v. The Christian Union Schloss v. Huber, 21 Misc. Rep. 28. Pub. Co., 17 Hun, 318; Wolf v. Mer- 96 Nowlan v. Trevor, 2 Sweeny, 67; ritt, 21 Wend. 336 ; Nowlan v. Trevor, Frost v. Akron Iron Co., i App. Div. 2 Sweeny, 67 ; Coit v. Planer, 7 Robt. 447. 413; s. c, 4 Abb. Pr. (N. S.) 144; 97 See the cases cited, supra. Maquart v. La Farge, s Duer, 539; 98 Wilson v. Taylor, 8 Daly, 253. Clarke v. Richardson, 4 E. D. Smith, 41 642 Duration of Defective Leases in New York City. for a year, and on the terms of the original demise, if assented to by the landlord.^* Elsewhere than in the city of New York, if the lease is for less than a year, the holding over is for an equal period.* Omitted Sections of this Article. The reader will observe that at present there are no sections of The Real Property Law numbered 203 and 204. 9^Haynes V. Aldrich, 133 N. Y. 287; & Co., 59 id. 184. Cf. §§ 199, 200, Herter v. Mullen, 9 App. Div. 593; 202, The Real Prop. Law. Conway v. Starkweather, i Den. 113; 1 Ketcham v. Ochs, 34 Misc. Rep. Frost V. Akron Iron Co., i App. Div. 470, 472. Cf. Herter v. Mullen, 52 449; Farrell v. Manhattan Railway App. Div. 325. Co., 43 id. 143; Sullivan v. Ringler The Real Property Law. 643 ARTICLE VIL Conveyances and Mortgages. Section 205. Definitions and use of terms. 206. Livery of seizin abolished. 207. Wlien written conveyance necessary. 208. Grant of fee or freehold. 209. When grant takes effect. 210. Estate which passes by grant or devise. 211. Certain deeds declared grants. 212. Conveyance by tenant for life or years of greater estate than possessed. 213. Effect of conveyance where property is leased. 214. Covenants in mortgages. 215. Mortgages on real property inherited or devised. 216. Covenants not implied. 217. Lineal and collateral warranties abolished. 218. Construction of covenants in grants of freehold interests. 219. Construction of covenants in mortgages and bonds. 220. Construction of grant of appurtenances and of all the rights and estate of grantor. 221. Construction of grant in executor's or trustee's deed of appur- tenances, and of the estate of testator and grantor. 222. Covenants to bind representatives of grantor and mortgagor and enure to the benefit of whom. 223. Short forms of deeds and mortgages. 224. When contract to lease or sell void. 225. Effect of grant or mortgage of real property adversely possessed. 226. Conveyances with intent to defraud purchasers and incum- brancers void. 227. Conveyances with intent to defraud creditors void. 228. Conveyances void as to creditors, purchasers and incum- brancers, void as to heirs and assigns. 229. Fraudulent intent, question of fact. 230. Rights of purchaser or incumbrancer for valuable considera- tion protected. 231. Conveyances with power to revoke, determine or alter. 232. Disaffirmance of fraudulent act by executor and others. 233.. When remainderman may pay interest owed by life tenant. 234. Powers of courts of equity not abridged. § 205. Definitions and use of terms. — The term " heirs," or other words of inheritance, are not requisite to create or convey an estate in fee. The term " conveyance," as used G44 Definitions and Use of Terms. in this article, includes every instrument, in writing, except a will, by which any estate or interest in real property is created, transferred, assigned or surrendered. Every in- strument creating, transferring, assigning or surrendering an estate or interest in real property must be construed accord- ing to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law. The terms " estate " and " interest in real property," include every such estate and interest, free- < hold or chattel, legal or equitable, present or future, vested or contingent. Formerly i Revised Statutes, 748, sections i, 2, and 2 Revised Statutes, 137, sections 6, 7 : § I. The term " heirs,'' or other words of inheritance, shall not be requi- site to create or convey an estate in fee ; and every grant or devise of real estate, or any interest therein, hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear, by express terms, or be necessarily implied in the terms of such grant.l § 2. In the construction of every instrument creating or conveying, or authorising the creation or conveyance of, any estate or interest in lands, it shall be the duty of courts of justice, to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law.^ § 6. The term " lands," as used in this Chapter,^ shall be construed as coextensive in meaning, with " lands, tenements and hereditaments ;'' and the terms " estate and interest in lands," shall be construed to embrace every estate and interest, freehold and chattel, legal and equitable, present and future, vested and contingent, in lands, as above defined.* § 7. The term " conveyance," as used in this Chapter,^ shall be construed to embrace every instrument in writing, (except a last will and testament) whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands, is created, aliened, assigned or surrendered.^ Section 205 Composed of Four former Sections. Since the Commis- sioners of Statutory Revision have combined four sections of the Revised Statutes in one section of the present law, it is necessary 1 Repealed, chap. 547, Laws of tracts. Relative to Real and Personal 1896. Property." 2 Repealed, chap. 547, Laws of * Repealed, chap. 417, Laws of 1896. 1897. 3 Chap. VII, part II, R. S. " Of s chap. VII, part II, R. S. ut supra. Fraudulent Conveyances and Con- ® Repealed, chap. 417, Laws of 1897. Omission of " Heirs " in Limitations. 645 to resolve such section back to its elements in any exposition or construction of its contents. The Term " Heirs," and Other Words of Inheritance, no Longer Neces- sary to Carry a Fee. The term " heirs," or other words of inherit- ance, are rendered unnecessary to carry an estate in fee by this provision, taken out of the Revised Statutes.'' The Common Law. At common law, the fee, or inheritance, did not pass by a deed, without the employment of the word " heirs;" it being prcesumptio juris that without the word " heirs," a life es- tate was created.® But the construction was otherwise in a devise, where the intention of testator was to be followed; and conse- quently the words " to A. all my estate," or to " A. in perpetuity," etc., in a will, were equivalent to a limitation to " A. and his heirs " in a deed, and carried a fee to devisee.® The Revised Statutes. The original revisers did not approve of such distinction, which was no doubt founded on the feudal law, and formulated during the time of the discussion concerning the in- heritable character of " feuds." ^° Yet, as the common-law rule was very well understood by conveyancers, it only conduced to tech- nical precision, for few laymen drew their own deeds. The prac- tice was otherwise with wills. The revisers thought best to intro- duce uniformity, and subjected all instruments of conveyance, wills and deeds alike, to the same rule of construction — the intention of the parties.^^ This rule, they gave particular expression to, in the next section of the Revised Statutes,^^ and now the intent of the parties to all manner of conveyances is the key to their con- struction in all cases.*^ Thus the rule of construction, that cross- ■^ I R. S. 748, §§ I, 2; Guernsey v. generally; Bradstreet v. Clarke, 12 Guernsey, 36 N. Y. 267, 268; Grain v. Wend. 602; Terry v. Wiggins, 47 N. Wright, 114 id. 307; Hilliker v. Bast, Y. 512, 514. Cf. Burlingham v. 64 App. Div. 552. Belden, 21 Wend. 463; Wheaton v. 8 2 Black. Gomm. ^oj/' But the in- Andress, 23 id. 452. ttntion was a|[so sometimes followed '^'^ Supra, p. 6. in construing te dee^ informally ex- "Note to i R. S. 748, §§ i, 2. pressed. JacAon yex dem., etc. v. 12 j r 5. 748, § 2. Waltermire, 7 Vqw. 353 ; Darling v. 13 Bennett v. Culver, 97 N. Y. 250, Rogers, 22 Weak, at pp. 483, 489; 257; Coleman v. Beach, id. S4S, SS4; Bridger v. PieT/o\ 45 N. Y. 601, 604; Purdy v. Hayt, 92 id. 446, 454; How- Metcalf V. Qrystal Park Assn., 63 land v. The Union Theolog. Semi- App. Div. 4^, 447.\ nary, 3 Sandf. 82, no; Parks v. 9 See Cruise, Dig., tit. 38, chap. 11, Parks, 9 Paige, 107, 117. 646 What Words Pass a Fee. remainders would not be implied in deeds, is no longer permis- sible." Effect of the Revised Statutes. The above-mentioned statutory rules of construction are said to have reversed antecedent common- law rules.^^ But this is, perhaps, putting the effect of the sjtatute in general too strongly, as the intention of parties governed even in deeds in some cases before the statute,^^ while the intention was not always conclusive in the case of devises." The presumption of law was, however, reversed by the statute in the construction of the quantum of estates, as under the statute all the estate of grantor passes, unless the intent to pass a less estate appears;'* while at common law an estate not of inheritance passed, unless the intent to pass an estate of inheritance expressly appeared or the devisee was the heir at law. What Words now Pass a Fee. No form of words is now necessary to pass an estate in fee, provided the intent so to do is obvious.'* A devise of the rents and profits is a devise of the thing itself,^" and an estate may pass or arise by implication if the intent is clear.^' But the description of property to be conveyed is not supplied by intendment, whatever the intent of the parties may have been.*^ I Revised Statutes, 748, Section z. Intent of the Parties to Prevail. This section was originally a legislative mandate for a cy pres con- 1* Vide supra, p. 206. v. Hamilton, 4 id. 211, 216; Wood v. ii^Lalor, Real Prop. 306, citing Taylor, 9 Misc. Rep. 640; Mason v. Parks v. Parks, 9 Paige, 107, 121; Thwing, 94 App. Div. 77. Metcalf v. Crystal Park Assn., 63 i» The Long Island R. R. Co. v. App. Div. 445, 447. Conklin, 29 N. Y. 572; Kirtz v. Peck, 18 Jackson ex dem., etc. v. Walter- 113 id. 222, 229; Campbell v. Morgan, mire, 7 Cow. 353. Cf Sparrow v. 22 N. Y. Supp. looi. Kingman, i N. Y. 242, 257. 20 Paterson v. Ellis, 1 1 Wend. 259, I'^Olmstead v. Olmstead, 4 N. Y. 298; Illensworth v. lUensworth, 39 56. Misc. Rep. 194, 197. 18 Williams v. Williams, 8 N. Y. ^i Brown v. Quintard, 177 N. Y. 75, 525, 539; NicoU v. The N. Y. & Erie 84; Post v. Hover, 33 id. 594; Matter R. R. Co., 12 id. 121, 128; Heath v. of Koss, 177 N. Y. 371, 375; Culhane Barmore, 50 id. 302, 306; Taggart v. v. Fitzgibbon, 42 Misc. Rep. 331. Murray, 53 id. 233 ; Moore v. Pitts, ^^ Coleman v. Manhattan Beach id. 85, 89; Freeborn v. Wagner, 2 Imp. Co., 94 N. Y. 229, 232. Abb. Ct. App. Dec. 175, 179; Sheehan Intention of Parties Controlling. 647 struction of documents .^^ It binds the court in some respects.^* But it was the rule before the statute, that a deed must be con- strued so as to give effect to the intent and design of the parties,^® and such was always the principle applied in the construction of last wills.''* If a deed is inartificial and does not employ technical terms, the intention is to be ascertained from the whole instru- ment.^'' This section now appHes to both wills and deeds.^* 23 Coster V. Lorillard, 14 Wend, at Bridger v. Pierson, 45 id. 601, 604; pp. 308, 309; Mayell v. Brown, 16 Bennett v. Culver, 97 id. 250, 256. Fed. Cas. at p. 438 ; note to 4 Kent, 26 Purdy v. Hayt, 92 N. Y. 446, 454. Comm. 508. 27 Speed v. St. Louis M. B. T. Co., 24 Morris v. Ward, 36 N. Y. 587, 86 Fed. 235. 595. 28 Heath v. Hewitt, 127 N. Y. 166 ; 25 French v. Carhart, i N. Y. 96 ; Ward v. Stanard, 82 App. Div. 386, 390- 648 Livery of Seisin Abolished. § 206. Livery of seizin abolished The conveyance of real property by feoffment, with livery of seizin, has been abol- ished. Formerly i Revised Statutes, 738, section 136: § 136. The mode of conveying lands by feoffment with livery of seisin, is abolished.29 Common Law. At common law a writing, or deed of conveyance, was not essential to the transfer of title to real property,^** except when to a corporation aggregate. The title passed by a feoffment with livery of seisin. A feoffment was at first confined to the transfer of a fee only and not used to transfer a life estate.^' It was a formal oral grant : " I give thee and thy heirs forever black acre " was probably a sufficient form of feoffment at common law. But a feoffment, without livery of seisin, was both incomplete and ineffectual.^^ Mr. Challis was of the opinion that a feoffment and livery were one and the same thing. ^^ In this he does not coincide with other writers.^* A written charter, or deed of feoffment, at an early date was used simply to record the transaction, and was, therefore, usually expressed in the past tense.^^ After this, livery was frequently made secundum formam carta, and the deed was then called a charter of feoffment.^^ On the written charter the witnesses then customarily indorsed the fact that they had wit- nessed livery of seisin. But the charter and indorsement were only modes of preserving evidence and not a conveyance.^'' Not until ancient did a charter become a sort of Scotch, or hearsay, evi- dence,^* provided it was not suspicious on its face. Chancellor Kent thought that the mode of conveyance by feoffment with livery of seisin was not used in New York.^® But opposed to his opinion is the fact that certain early charters at Albany bear an indorsement 29 Repealed, chap. 547, Laws of ^* 2 Gilbert, Uses, 2, 3 ; Strahan, 1896. Prop. 230; Co. Litt. 48a. 30 Shep. Touch. 203 ; Mr. Har- 37 gge Wigmore, 4 Col. Law Rev. grave's note 310, Co. Litt. 48a; Challis, 343 seq. 326. 38 Our doctrine of ancient deeds 31 Co. Litt. 9a. corresponds to the Scotch law which 32 Challis, 321 ; Co. Litt. 48a. admits hearsay evidence in all cases 33 Challis, Real Prop. 321. when it is not suspicious. 3*2 Black. Comm. 310, 311; Litt, 39 4 Kent, Comm. 489. Cf. Chan- § 70; Co. Litt. 9a, s6b; Smith, Real cellor Walworth to the contrary, & Pers. Prop. 514; Shep. Touch. 203. Rogers v. Eagle Fire Ins. Co., 9 35 " Has conveyed, enfeoffed, etc." Wend. 611, 622. Bracton, lib. 2, cap. 16, fol. 34b. Livery of Seisin Abolished. 649 of livery of seisin. Chancellor Kent is clearly wrong in his state- ment that it was also obsolete in England,*" as persons in our own times have taken part in this form of conveyance.''^ Livery of Seisin. Livery of seisin (which presumably corresponds with " traditio," or delivery of possession, in the Roman Law)*^ was the primary element of a freehold at common law. It is called the " investitive fact " *^ in the common law.** Originally the act of feudal investment,*^ livery became in law the ultimate sign of a perfected transfer inter vivos of title to a freehold estate.*^ When Written Deeds Became Necessary to Conveyance of Lands. Precisely when deeds became essential in English law to the trans- fer of freeholds is not certain. Yet the use of deeds or charters is more ancient than the feudal settlement in England. But from the Conquest, certainly until the Statute of Inrolments,*^ a writing was not necessary to the legal transfer of freeholds.*^ Yet during all this period written deeds were commonly used for purposes of the preservation of evidence or the recording of transactions. The Statute of Uses*^ brought into practice as legal conveyances deeds of bargain and sale, and by the mere operation of that statute the legal estate was transferred to the bargainee.^" Then came the Statute of Inrolments. No ceremony was made necessary by the Statute of Inrolments to such bargain and sale, and, therefore, both livery of seisin and attornment were superseded by it.®^ To prevent secret conveyances the Statute of Inrolments^^ required deeds of bargain and sale to be enrolled. This was virtually to require a writing, at least for this species of conveyances.^^ But the common-law conveyance by feoffment, with livery of seisin, continued legal, and, indeed, essential to make a perfect disseisin in some cases,*** and to such mode of conveyance no writ- *» 4 Kent, Comm. 489. ** Shep. Touch. 203 ; Co. Litt. 48a, *i Challis, 321. note ; 4 Col. Law Rev. 343. *2 Cf. Digby, Hist. Real Prop., I 12, *9 27 Hen. VHI, chap. 10. chap. H ; Spence, Eq. Jurisdic. 33. t** Co. Litt. 48a, note 310. *3 Bisset, Estates for Life, 13. ^i 2 Sanders, Uses & Trusts, 42. ** Vide supra, p. 20. ^2 27 Hen. VHI, chap. 16. *5 I Black. Comm. 311; Sparrow v. 53 Note 310, Co. Litt. 48a; Strahan, Kingman, i N. Y. 242, 250. Prop. 224; 4 Col. Law Rev. 351. *8 There were two kinds of livery s* Sparrow v. Kingman, i N. Y. at of seisin — livery in deed and livery pp. 250, 251; McGregor v. Comstock, in law. See Co. Litt. 48a. 17 id. at p. 171 ; Varick v. Jackson, 2 *7 27 Hen. VHI, chap. 16. Wend. 158, 203 ; Shep. Touch. 203 ; Strahan, Prop. 231. 650 Livery of Seisin Abolished. ing was necessary until the Statute of Frauds.^' A deed was still unnecessary to satisfy that statute; any writing would do.^* If the writing were a deed it need not be signed; sealing and delivery sufficed.^^ The English Statute of Frauds did not, however, extend to New York, being enacted only after the EngHsh law was estab- Hshed here/'*^ But the Duke's Laws, established in New .York in 1664-5, required a conveyance to be by deed.^^ In 1683,®" and in 1684,®^ the Legislature of New York required such deeds to be acknowledged and recorded before they had legal effect as to third persons. At a later day the English Statute of Frauds®^ seems, however, to have been extended here by judicial legislation,*^ and in 1787 it was revised and formally re-enacted in Jones & Varick's revision,^ and so passed into the Revised Statutes.*^ Thus, until the Revised Statutes, conveyance by feoffment with livery of seisin, was valid, but it must have been accompanied by a deed under the Statute of Frauds. As late as 1827 a conveyance by feoffment with livery of seisin was made in New York by a Mr. Edgerton Win- throp. It was, of course, accompanied by a deed to satisfy the Statute of Frauds.** In 1830 the Revised Statutes abolished al- together this form of conveyance.®^ Written Conveyances. The law regulating written conveyances in this State is now largely embodied in the next succeeding section of this act.** B5 29 Car. II, chap. 3. Unless in conveyancing," i Col. Laws of N. Y. writing feoffment with livery under 141. this statute could create only an es- *' "A bill to prevent deceipt and tate at will, determinable by feoffor, fforgerye," i Col. Laws of N. Y. 148. Co. Litt. s6b. *2 29 Car. II, chap. 3. B8 Prest. Shep. Touch. 203 ; 4 Col. ** Preamble to chap. 1678, s Col. Law Rev. 350, 352. Laws of N. Y. 689. 5Ti Prest. Abst. of Title, 236; e^a J. & V. 88. Cf. Cahill Iron Challis, Real Prop. 327; Prest. Shep. Works v. Pemberton,. 30 Abb. N. C. Touch. s6b; 3 Prest. Abst. of Title, 540. 61 ; I Sugd. Pow. 304 ; Smith, Law ** Supra, under § 207, The Real of Contracts, note a, discussing recent Prop. Law. English cases. ** McGregor v. Comstock, 17 N. Y. 58 Burton, Compend. Real Prop. 162, 164, 171. 499. Cf. Cahill Iron Works v. Pem- *'' Vide supra, 1 R. S. 738, § 136 ; berton, 30 Abb. N. C. 450. § 206, The Real Prop. Law ; Moore v. 59 Duke's Lawes, tit. " Convey- Littel, 41 N. Y. at p. 78 ; Archer v. ances, Deeds and Writings," i Col. Eckerson, 10 App. Div. 598, 601. Laws of N. Y. 30. *8 S 207, Th» Real Prop. Law. 60 "An act to prevent frauds in What Conveyances to be in Writing. 651 § 207. When written conveyance necessary. — An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, can not be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creat- ing, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing. But this section does not afifect the power of a testator in the disposition of his real property by will; nor prevent any trust from arising or being extinguished by implication or operation of law, nor any declaration of trust from being proved by a writing subscribed by the person declaring the same. Formerly 2 Revised Statutes, 134, section 6, and 2 Revised Statutes, 135, section 7, and 2 Revised Statutes, 137, section 2: § 6. No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assign- ing, surrendering or declaring the same, or by his lawful agent, thereunto authorised by writing.^* § 7. The preceding section shall not be construed to affect in any manner, the power of a testator in the disposition of his real estate, by a last will and testament; nor to prevent any trust from arising, or being extinguished, by implication or operation of law; nor to prevent, after a fine™ shall have been levied, the execution of a deed or other instrument, in writing, declar- ing the uses of such fine. (Amended by chap. 322, Laws of i860, by insert- ing the words " Nor to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same.")'^l § 2. Every grant or assignment of any existing trust in lands, goods or things in action, unless the same shall be in writing, subscribed by the party making the same^ or by his agent lawfully authorised, shall be void.''^ Conveyances to be in Writing. This section belongs strictly to the famous " Statute of Frauds." The history of the various statutes 89 Repealed, chap. 547, Laws of ^i Repealed, chap. 547, Laws of 1896. 1896. ™ As to fines, see note of the Com- '^2 Repealed, chap. 418, Laws of missioners of Statutory Revision to 1897. i 207, The Real Prop Law. G52 Statute of Frauds. requiring conveyances of lands to be in writing, has been outlined under the preceding section of this act,''^ and need not be repeated. Statute of Frauds. When Jones & Varick came to revise for re- enactment the English Statute of Frauds''* in 1787, they did not depart far from the phraseology of the original statute.''^ They, however, consolidated into one act the Elizabethan statutes''® against fraudulent conveyances and the act of Charles II for the prevention of frauds and perjuries called the " Statute of Frauds." '''' Section 9 of 2 Jones & Varick, 88, corresponded to sections i and 2, 29 Charles II, chapter 3; section 10 of 2 Jones & Varick, to section 3, 29 Charles II, chapter 3; section 11 of 2 Jones & Varick, 88, to section 4, 29 Charles II, chapter 3; section 12 of 2 Jones & Varick, 88, to section 7, 29 Charles II, chapter 3; section 13 of 2 Jones & Varick, 88, to section 8, 29 Charles II, chapter 3; section 14 of 2 Jones & Varick, 88, to section 9, 29 Charles II, chapter 3.''* The subsequent revisions in New York in 1802''^ and 1813*" preserved the language of Jones & Varick's edition of the English Statute of Frauds. The Revised Statutes®^ somewhat altered the language of that great statute while preserving the sense.*^ Derivation of New York Statute. Section 207 of The Real Property Law is composed of sections 6 and 7 of 2 Revised Statutes, 134, 135, and section 2 of 2 Revised Statutes, 137. Section 207 thus indirectly came from the English Statute of Frauds (29 Car. 11).*** But the Revised Statutes often bore a different construction from the English act.^* Construction of this Section. The construction of the Revised Statutes establishes that mo estate or interest in lands, except a term not exceeding one year,*^ can be passed or surrendered by act of ^3 Supra, p. 649. ^ Revisers' note to chap. 7, part II, M 29 Car. II, chap. 3. R. S. ''5 2 J. & V. 88, §§ 9, ID, 12; I K. & 83 Revisers' note to chap. 7, part II, R. 7S; I R. L. 75; Hutchins v. Van R. S. Vechten, 140 N. Y. 115, 118. ** White v. Douglass, 7 N. Y. 564, ''^ 13 Eliz., chap. S ; 27 id., chap. 4. 569- ^■^ 29 Car. II, chap. 3. ^^ By the original statute, an estate ■^8 See note of Revisers of R. S. to for years, created without writing, chap. 7, part 2, R. S. for a period longer than three years, ra I K. & R. 7S. had the force of an estate at will. 80 I R. L. 7S. lackson ex dem. v. Wood, 12 Johns. 81 2 R. S. 134, § 6 ; id. 135, § 7 ; id. 73- 137, i 2- Statute of Frauds. 653 the parties unless in writing.^® But nevertheless a parol gift of an estate in lands may be rendered a vaHd transfer, where donee has entered on the lands and made valuable improvements.*^ So a title may arise by estoppel and not by deed.** Specific performance of an oral agreement to grant a lease is often granted after acts or pail performance on the part of the lessee, notwithstanding the Statute of Frauds,** for that statute is not to be made an instrument of fraud.** So where vendee pays purchase money, enters and makes valuable improvements on the faith of an oral agreement to convey, equity will enforce the agreement.®^ Part Performance. But as a rule part performance, such as a part payment of the consideration, does not take a transaction under this section out of the statute. The money may be recovered back in a proper action.®^ Executed Oral Agreements. Executed oral agreements cannot, how- ever, be rescinded because not in writing. The statute refers to executory, not to executed, agreements.^^ Some Oral Promises not Within the Statute. All oral promises by vendors, at the time of conveyance, are not within the prohibition 86 Wheeler v. Reynolds, 66 N. Y. 89 Lester v. Foxcroft, i White & 227; McGregor v. Brown, 10 id. 114; Tudor, Lead. Cas. in Eq. 881 and Leonard v. Clough, 133 id. 292 ; Wood notes. V. Rabe, 96 id. 414; Ludwig v. 90Lamb v. Lamb, 80 App. Div. 250, Bungart, 48 App. Div. 613, 616; Con- 256, et vide p. 363, supra; p. 659, Ion V. Mission of Immaculate Virgin, infra. 87 id. i6s, 169. Cf. Matter of Frankel, 9i Winchell v. Winchell, 100 N. Y. 157 N. Y. 603, 611; BuUenkamp v. 159, 163; Ludwig v. Bungart, 48 App. Bullenkamp, 34 App. Div. 193, 19S; Div. 613, 616; Gage v. Gage, 13 id. s c, 43 id. 510; § 79, Chaplin, Landl. 565; Luessen v. Morich, 72 id. 443; & Ten. Conlon v. Mission of Immaculate 8T Young v. Overbaugh, 145 N. Y. Virgin, 87 id. 165, 169. 158; Freeman v. Freeman, 43 id. 34; 92 Cooley v. Lobdell, 153 N. Y. 596; Babcock v. Utter, i Abb. Ct. App. Qonlon v. Mission of Immaculate Dec. 27, 37; Matter of Frankel, 157 Virgin, 87 App. Div. 165, 169. N. Y. 603, 611; Hay v. Knauth, 169 93 Torres v. Thompson, 29 Misc. id. 298; Harris v. Frink, 49 id. 24; Rep. 526; De Hierapolis v. Reilly, Miller v. Ball, 64 id. 286; Agan v. 44 App. Div. 22; Winchell v. Win- Barry, 66 App. Div. loi ; Bouton v. chell, 100 N. Y. 159, 163 ; Brown v. Welch, 48 id. 378, 387. Cf. McCray Crabb, 156 id. 447; Luessen v. Morich, v. McCray, 30 Barb. 633. 72 App. Div. 443. 88 Washburn, Real Prop., § 6, chap. 2, book III. G54 Statute of Frauds. of this statute, nor are they merged; e. g., a promise to pay an assessment as a condition of vendee's acceptance of the deed;®* partnership deahngs in realty.*^ A deed may be delivered as a security and then in equity it will be regarded as a mortgage, even though absolute on its face.®^ Estate or Interest in Real Property. The Statute of Frauds relates to estates and interests in real property. They cannot be created, granted, assigned or surrendered, etc., unless by deed or convey- ance in writing; but may be, by operation of law. Thus not all agreements respecting land fall within the statute.®^ Boundaries. This section does not refer to settlements of disputed boundaries.®^ Easement; Equity of Redemption; Incorporeal Hereditaments. An ease- ment is an interest in real property within this section;*® and so an equity of redemption.^ Incorporeal hereditaments, generally, fall within this statute.* Lease or Demise Exceeding One Year Void. The statute avoids oral agreements to lease real property for a term in excess of one year.' But this does not prevent a term of one year from beginning in future* Leases for Successive Years. It is said that a lease for one year, at a rent certain, with a right of renewal for another year, is within this section and must be in writing." 9* Vide p. 362, supra; p. 657, infra; ^ Arnold v. Hudson River R. R. Remington v. Palmer, 62 N. Y. 31; Co., 55 N. Y. 661; Wiseman v. Luck- Robbins v. Robbins, 89 id. 251 ; Purdy singer, 84 id. 31 ; Fonda, J. & G. R. R. V. Collyer, 26 App. Div. 358; Bern- Co. v. Olmstead, 84 App. Div. 127. heimer v. Schmid, 36 Misc. Rep. ^ Stoddard v. Whiting, 46 N. Y. 456, 4S8; Med. College Lab. v. N. Y. 627. Cf. Snow v. Daggett, 27 Misc. University, 76 App. Div. 48, 59. Rep. 256. ss Traphagen v. Burt, 67 N. Y. 30; * grown v. Woodworth, 5 Barb. Hollister v. Simonson, 36 App. Div. 550. 63; Sanger v. French, 157 N. Y. ' i"M/>J-o, § 207, The Real Prop. Law. 213. 23s ; Smith v. Smith, 125 id. 224 ; * Ward v. Hasbrouck, 169 N. Y. Bailey v. Weed, 36 App. Div. 611; 407; Young v. Dake, 5 id. 463; Smith V. Kissel, 92 id. 235. Chaplin, Landl. & Ten., § 76; infra, 96 Vide infra, under § 269, The Real p. 656. Prop. Law. " Hess v. Martin, 36 Misc. Rep. 9'^ § 207, The Real Prop. Law. 541 ; Holzdesber v. Forrestal, 13 Daly, 98 Davis v. Townsend, 10 Barb. 333, 34 ; Spota v. Hayes, 36 Misc. Rep. 346. 532; Chaplin, Landl. & Ten., § 78. Leases in Writing. 655 Lease or Demise in Writing. When the statute requires a demise to be in writing the usual instrument of conveyance is a " lease." ^ This instrument is the common mode of transferring chattel inter- ests in lands inter vivos. It applies to the creation of a term of years, or chattel interests, out of a freehold, or out of another chattel interest of longer duration, in point of time.'^ The usual consideration of a lease is money, called " rent." * At common law, the lease conferred no estate until entry; the lessee had only an interesse termini, unless the lease was by bargain and sale, when it was executed by the Statute of Uses.^ An interesse termini was, however, assignable.^" In this State, leases are usually bargain and sales, and the estate of the lessee vests without entry under our revised Statute of Uses. But a written lease, like any other con- veyance, becomes operative only by delivery." A lease is a con- tract for possession and profits in consideration of rent or return, and it is also properly a conveyance for life, for years, or at will.^^ If a lease is for life, it creates a freehold and must be subscribed, but need not be sealed.^* But for the reasons stated under section 208," it is better to continue to seal a lease. As a freehold lease need not now be sealed, it is of course unnecessary to seal a lease for years or at will, as they create only chattel interests." Usual Covenants in Leases. The usual covenants in leases are (l) to pay rent; (2) to keep and deliver up the premises in repair; (3) giving lessor right to re-enter for non-payment of rent or breach of covenant;" (4) not to commit waste; (5) not to use premises in particular ways; (6) not to assign or underlet without consent of lessor in writing. The words, " demise, lease and to farm let " are the proper granting terms for a lease or demise ;" but any other words which show the intention of the parties will suffice. The words " bargain Sed cf. Ward v. Hasbrouck, 169 N. 12 Smith, Real & Pers. Prop. 527 ; Y. 407; 3 Preston Conveyancing, 76; Cruise, Dig., tit. 32, chap. 5, § i. Hart V. Hart, 22 Barb. 606. is § 208, The Real Prop. Law. 8 § § 237, 240, The Real Prop. Law. So our so-called " perpetual leases," ■^ § 23, The Real Prop. Law. supra, p. 177. 8 Vide supra, pp. 148, 315. 1* Infra, pp. 661, 662. 9 2 Black. Comm. 144. is § 23, The Real Prop. Law. lOStrahan, Prop. 235. iSDe Lancey v. Ganong, 9 N. Y. 11 See under § 209, The Real Prop. 25. Law. 17 Cruise, Dig., tit. 22 chap. 5, § 2. 656 Statute of Frauds. and sell " are not inappropriate in a lease and our Statute of Uses, as revised, executes the term in the tjargainee." No lease or grant of agricultural land reserving rent or service is valid for longer than twelve years.^* It is sometimes doubtful whether an agreement is a lease or a contract to lease ^^ but the leaning of the court is to construe it as a present demise and not a contract for a future letting.^^ Assignments of Leases. Assignments of terms of years or leases fall under this section,^ but even at common law they need not be sealed.^ Void Demises. A demise void under this section may, neverthe- less, support an action for use and occupation,^* or create a tenancy from year to year.^^ Demise for a year by parol may begin in futuro.^^ Surrender. A surrender is an executed agreement that a demise, or other term of years, shall cease.^'' The surrender may be express, or by operation of law.^ An unex-pired term for a year may be surrendered by parol, even though the original term was of longer duration.^* So certain agreements originally required to be in writing may be surrendered by parol.^° Wills. This section preserves venia testandi or the privilege of making a will in conformity with our Statute of Wills.^^ Agreement to Will Lands. An agreement to devise lands (mutual or otherwise) must be in writing^^ unless there has been such a 18 Vide Lease, 2 Black. Comm., Ap- ^5 Reeder v. Sayre, 70 N. Y. 180. pendix II, et supra, pp. 350-353. ^^ Young v. Dake, 5 N. Y. 463 ; 19 N. Y. Const., art. i, § 13 ; supra, Herter v. Muser, 29 Misc. Rep. 641. p. 78. ^^ Bedford v. Terhune, 30 N. Y. 20 Jackson v. Delacroix, 2 Wend. 454. 433 ; Pearce v. Colden, 8 Barb. 522 ; 28 Supra, p. 142. Averill v. Taylor, 8 N. Y. 44; Foster 29 Smith v. Devlin, 23 N. Y. 363. V. Clifford, 42 Misc. Rep. 496. ^^ Proctor v. Thompson, 13 Abb. N. 21 2 Prest. Shep. Touch. 271 ; Smith, C. 340, 346; Lewis v. Donohue, 27 Real & Pers. Prop. 527; Averill v. Misc. Rep. 514; and see Chaplin, Taylor, 8 N. Y. 44. Landl. & Ten., § 79. 22 § 207, The Real Prop. Law. 3i § 207, The Real Prop. Law ; 2 23Holliday v. Marshall, 7 Johns. R. S. 56. 211. 32 jjamlin v. Stevens, 177 N. Y. ^ Supra, § 190, The Real Prop. 39; Ludwig v. Bungart, 48 App. Div. Law. 613, 616; Gall V. Gall, 64 Hun, 601; Trusts in Lands. 657 performance as will take it out of the statute.^^ How far this agreement may be for the benefit of third persons is questioned.^* Trusts in Lands. This section requires that all trusts of real prop- erty shall be created, assigned and declared, by a deed or con- veyance in writing. But it saves trusts operating by law.^^ Under the Revised Statutes no trust of lands could be created by act of the parties except it be by a deed or conveyance in writ- ing.*^ The act, chapter 322, Laws of i860, introduced a more liberal rule, and letters and informal memoranda are now sufficient to prove a trust.^^ This statute requiring a trust in lands to be manifested in writing has, however, no relation to a case where title is acquired by covin or fraud,^* or to imphed^^ or resulting trusts,*" which may be established by oral evidence.*^ On this principle oral promises to devote property, conveyed or devised absolutely, to special objects or purposes are enforced in equity.*^ affd., 138 N. Y. 67s; Gates v. Gates, 34 App. Div. 608, 611; Everdell v. Hill, 58 id. 151, iss; Kine v. Farrell, 71 id. 219. Cf. Brantingham v. Huflf, 174 N. Y. S3; Banta v. Banta, 84 App. Div. 138. 33 Id., supra; Bouton v. Welch, 48 App. Div. 378; Healy v. Healy, 31 Misc. Rep. 636, SS App. Div. 315, 166 N. Y. 624; Ahrens v. Jones, 169 N. Y. sss, 560; Rhoades v. Schwartz, 4t Misc. Rep. 648. Cf. Ripson v. Hart, 64 App. Div. 593 ; Conlon v. Mission of Immaculate Virgin, 39 Misc. Rep. 215; 84 App. Div. 507; Brann v. Ochs, 77 id. 20; Brant- ingham V. Huff, 174 N. Y. Z3 ; Pattat V. Pattat, 93 App. Div. 102. 3* Wait V. Wilson. 86 App. Div. 486. 3B § 207, The Real Prop. Law ; supra, pp. 358, 651. 36 White v. Douglass, 7 N. Y. 564 ; Sturtevant v. Sturtevant, 20 id. 39; Hutchins v. Van Vechten, 140 id. IIS, 118; 2 R. S. 137, § 2. 37 Hutchins v. Van Vechten, 140 N. Y. 115, 118; Dillaye v. Greenough, 45 id. 445 ; Cook v. Barr, 44 id. 156 ; 42 McArthur v. Gordon, si Hun, 511, 515 ; Hill v. Warsawski, 93 App. Div. 198; Lamb v. Lamb, 18 id. 250, 2S6; Morgan v. Turner, 3s Misc. Rep. 399, 403 ; et vide § 234, infra. Cf. Grouse v. Frothingham, 97 N. Y. los; Mackall v. Olcott, 93 App. Div. 282. 38 Ryan v. Dox, 34 N. Y. 307 ; Hall V. Erwin, 66 id. 649; Wheeler v. Rey- nolds, id. 227; Newman v. Nellis, 97 id. 28s ; Hawkins v. Dunmore, 24 Misc. Rep. 623. 39 Foote V. Bryant, 47 N. Y. 544 ; Wood V. Rabe, 96 id. 414, 422. *o Foote V. Bryant, 47 N. Y. S44; Ryan v. Dox, 34 id. 319. *i Chester v. Dickinson, 54 N. Y. i ; Traphagen v. Burt, 67 id. 30, 33; Swinburne v. Swinburne, 28 id. 568; Foote V. Bryant, 47 id. S44; Ryan v. Dox, 34 id. 319; Lemon v. The Bradley-Currier Co., 27 Misc. Rep. 642. Cf. Leary v. Corvin, 63 App. Div. 151 ; Med. College Lab. v. N. Y. Univtersity, 76 id. 48; Mackall v. Olcott, 93 id. 282. ■*2 Ahrens v. Jones, 169 N. Y. 155 ; 658 What Constitutes a " Conveyance." Trusts of Terms of Years. Terms of years, although chattels real, are within the articles on Uses and Trusts and Powers and presum- ably within this section.*^ Equity of Redemption. An equity of redemption, now being the legal estate in lands, cannot be dealt with by oral directions.** Power. No " power " respecting estates in lands can be given except by deed or by will.*^ Contracts. Other sections of this act refer to certain contracts in writing.*^ What now Constitutes a Deed or Conveyance in Writing. This section requires an estate or interest in land to be created, granted or assigned by a deed or conveyance in writing. As to what now con- stitutes a conveyance in writing, the subsequent sections of this act determine.*'^ Attestations or acknowledgments are not neces- sary to effectuate a deed inter partes, but only to record it.*^ No particular form of words is necessary to the validity of a con- veyance.** It will be observed that this section distinguishes a " deed " from a " conveyance," and this was formerly accurate at common law and is so under this statute. At common law a " deed " did not ex vi termini mean a deed of real estate; it meant simply a sealed instrument.^ A conveyance, if in writing, may now be unsealed.^i A deed is defined by the common law as a writing on parchment, vellum, or paper, sealed and delivered, to prove and testify the agreement of the parties, whose deed it is, to the things therein contained.^^ Real property, or an interest therein, may now be conveyed by a deed or a conveyance in writing.^ Matter of O'Hara, 95 id. 403; Am- Prop. Law. Cf. Willard, Real Est. herst College v. Rich, 151 id. 282, 323; & Conv. 372; 4 Kent, Comm., chap. 67. Arnot V. Hill, 39 Misc. Rep. 95; *8Wood v. Chapin, 13 N. Y. 509; Med. College Lab. v. N. Y. Univer- Strough v. Wilder, 119 id. 530, 535. sity, 76 App. Div. 48. Cf. Hill v. « Vide supra, p. 646, § 205, The Warsawski, 93 id. 198. Real Prop. Law. •*3 Bennett V. Rosenthal, II Daly, 91. sogiewitt v. Boorum, 142 N. Y. ** Reich V. Dyer, 91 App. Div. 240; 357, 360. Snow V. Daggett, 27 Misc. Rep. 256; 6I § 208, The Real Prop. Law. Stoddard v. Whiting, 46 N. Y. 627. 62 4 Cruise, Dig., tit. 32, chap, i, *5 Vide supra, pp. 483, 484, § 120, § 16 ; 2 Black. Comm. 295 ; I Preston, The Real Prop. Law. Shep. Touch. 50, 51 ; Co. Litt. 3Sb, *6 Vide § 224, infra. 171b ; Smith, Real & Pers. Prop. 475 « Vide infra, §§ 208, 211, The Real 63 § 208, The Real Prop. Law. Statute of Frauds. 659 Agent. If the principal acts through an agent in conveying, or creating, etc., an estate or interest in land, the agent's authority must be in writing.*** But the principal may ratify the oral authority of the agent so as to be bound by his act on the principle, ratihabitio mandato equiparatur.^^ Subscription. The -statute requires the conveyance of a fee or a freehold estate to be subscribed.^® Not an Instrument of Fraud. The Statute of Frauds is never so con- strued as to be made an instrument of fraud.®'' Pleading. This section must in a proper case be pleaded in order to be availed of,*** and if the defect be apparent on the face of the complaint, the objection must be taken by demurrer.®* w § 207, The Real Prop. Law. 19 ; Geneva Mineral Spring Co. v. ^^ Applebaum v. Galewsky, 34 Misc. Coursey, 45 id. 268; Crane v. Powell, Rep. 281. 139 N. Y. 379; Banta v. Banta, 84 56 Vide infra, § 208, The Real Prop. App. Div. 138. Cf. Fanger v. Cas- Law. pary, 87 id. 417; Brauer v. Oceanic 57 Vide supra, p. 653 ; infra, pp. 713, Steam Navigation Co., 178 N. Y. 339. 714. *"* Seamans v. Barentson, 78 App. 88 Crough v. Nurge, 44 App. Div. Div. 36. 660 Grants. § 208. Grant of fee or freehold — A grant in fee or of a free- hold estate, must be subscribed by the person from whom the estate or interest conveyed is intended to pass, or by his lawful agent. If not duly acknowledged before its delivery, according to the provisions of this chapter, its execution and delivery must be attested by at least one witness, or, if not so attested, it does not take efifect as against a subsequent purchaser or encumbrancer until so acknowledged. Formerly i Revised Statutes, 738, section 137: § 137. Every grant in fee or of a freehold estate, shall be subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, or his lawful agent ; if not duly acknowledged, previous to its deliv- ery, according to the provisions of the third Chapter of this Act, its execu- tion and delivery shall be attested by at least one witness; or if not so attested, it shall not take effect as against a purchaser or incumbrancer, until so acknowledged.80 Requisites of a Grant in Fee. A grant in fee or of an estate of free- hold now requires a writing;®^ but this section no longer requires that such a grant be a deed, or an instrument under seal.^^ At com- mon law more attention was paid to the act of sealing than to the act of signing, and a deed unsigned, but sealed, was good.®* The Statute of Frauds, according to Blackstone, first made signing essential to the validity of a conveyance inter vivos of a freehold,^* and this signature the Revised Statutes required to be subscribed.^' Both at common law and under the Revised Statutes a convey- ance of a freehold estate must be sealed to be effectual.®^ Sealing. A statute of 1892 permitted a substitutional or symbolic seal to be affixed to any deed of a private person.®'' The above 8" Repealed, chap. 547, Laws of ®* 29 Car. II, chap. 3, § i ; 2 J. & V. 1896. 88; I R. L. 78, § 9; 2 Black. Comm. ^^ Supra, § 207, The Real Prop. 306. Cf. Challis, 327; 3 Prest. Abst. Law. of Title, 61, where Blackstone's «2 Leask v. Horton, 39 Misc. Rep. statement is denied and challenged ; 144, et vide note to § 208, The Leask v. Horton, 39 Misc. Rep. 144. Real Prop. Law, by Commissioners ** i R. S. 738, § 137. of Statutory Revision, and cases ^ 3 Prest. Abst. of Title, 61 ; i R. S. cited under § 208, The Real Prop. 738, § 137; Morse v. Salisbury, 48 N. Law, infra. Y. 636 ; Mclntyre v. Barnard, i Sandf. 63 Wright V. Wakeford, 17 Ves. Ch. 52. 459 ; 3 Prest. Abst. of Title, 62. 67 Chap. 677, Laws of 1892, " The Sealed Instruments. 661 section of this act was intended to dispense with the necessity of sealing a grant of an estate of freehold.^* But it does not expressly abrogate other common-law rules touching the effect of sealing. Nor does it contain any provision regulating the former law of " covenants running with the land," when like provisions are now contained in a conveyance, not sealed.** Attestation and Acknowledgment. Neither attestation nor acknowl- edgment is necessary to the validity of a conveyance inter partes but only to effectuate it as to subsequent purchasers or incum- brancers.™ Effect of Sealing. Notwithstanding a conveyance of lands need no longer be sealed, conveyancers prefer to seal them so as not to experiment with established presumptions and the law of cove- nants running with the land. The effect of a seal on the doctrine of consideration is now slight, for by statute a seal has become only presumptive evidence of consideration which may be re- butted.''^ And yet, a seal is still regarded as imputing solemnity and efficacy to an instrument,''^ although not for the purposes of specific performance in equity.''^ A recital of a seal is not, how- ever, even equal to a symbolical or substitutional seal.''* Formerly a seal on a deed releasing a larger liquidated debt on part payment of the same operated to make the discharge good,^* Statutory Construction Law," chap. 103, 108. Cf. Roggen v. Avery, 63 id. I, General Laws, § 13. Cf. § 12, chap. 65. 677, Laws of 1892. 71 § 840, Code Civ. Proc. ; Baird v. «8 Note of Commissioners of Statu- Baird, 145 N. Y. 659, 662 ; Antisdel tory Revision to § 208, The Real v. Williamson, 37 App. Div. 167, 170; Prop. Law. Cf. § 12, chap. 677, Howie v. Kasnowitz, 83 id. 295, and Laws of 1892. see cases cited. Fowler, Pers. Prop. 69 Such provisions in an unsealed 86. instrument would probably run with T2 Frank v. Schloss, 37 Misc. Rep. the land on the theory of notice under 140, 141 ; Fuller v. Artman, 69 Hun, the recording acts. Cf. Tarbell v. 546 ; Williams v. Magee, 76 App. Div! West, 86 N. Y. 280; Dana v. Jones, 512, 515; McKenzie v. Harrison, 120 91 App. Div. 496, 500 ; and see infra, N. Y. 260 265 ; Howie v. Kasnowitz, under § 223, "Restrictions on the 83 App. Div. 295. use of land, contained in deeds." 73 Central Fire Works Co. v. 70 Wood v. Chapin, 13 N. Y. 509; Charlton, 42 App. Div. 104, 106. Chamberlain v. Spargur, 86 id. 603; 74 Davis v. Bingham, 39 Misc. Rep. Strough V. Wilder, 119 id. 530, 535; 299. Voorhees v. Presby. Church, 17 Barb. 75 Jackson v. Stackhouse, i Cow. 122; Anson, Cont. 383. 662 Sealed Instruments. and this is probably still the law;''® although the statute making the consideration of a sealed instrument rebuttable, somewhat dis- turbs the law," for a liquidated debt cannot be discharged by the payment of a part of it, unless the release is sealed. At common law an instrument under seal could be released only by an instru- ment of as high a nature; but at an early day this rule was much modified in this State.''^ - The elifect, then, of sealing a conveyance, at the present day, is to give it solemnity and to preserve the learning of the law of cove- nants in connection with it ; for a covenant is still a promise under seal. That it is better to seal a conveyance is also apparent when we consider the doctrines of consideration and the burden of proof. A conveyance now requires a consideration to support it, and a seal remains prima facie or presumptive evidence of consideration.™ Prima facie evidence is often insurmountable. A reference to the authorities on the antiquity and the law of sealed instruments will be found in other treatises and need not be here repeated.*" Consideration. While at common law a deed, or an instrument imder seal, always imported a sufBcient consideration, in equity it was otherwise.®! To deeds operating by transmutation of posses- sion a consideration, even after the Statute of Uses, was unneces- sary .^^ But a " bargain and sale " and " covenant to stand seised " after that statute required a consideration.®^ Bargain and sales operated by force of the Statute of Uses, and as before that statute equity would not enforce a bargain and sale without a considera- tion, this notion was transplanted to the common-law courts after the Statute of Uses. A " bargain and sale " still requires a con- ''B McKenzie v. Harrison, 120 N. Y. ®" Wigmore, 4 Col. Law Rev. 342 260, 265; Norris v. Norris, 85 App. et seq., Fowler, Pers. Prop. 84, 85. Div. 113, 116; Howie v. Kasnowitz, *l 3 Prest. Abst. of Title, 13. 83 App. Div. 29s ; Mintzer v. Supreme S2 ^ Prest. Abst. of Title, 13 ; Council, 41 Misc. Rep. 512. Wood v. Chapin, 13 N. Y. 509, 517; 77 § 840, Code Civ. Proc. Smith, Real & Pers. Prop. 667 ; Rog- 78 PierrSpont v. Barnard, 6 N. Y. ers v. Eagle Fire Ins. Co., 9 Wend. 279. 29s; McCreery v. Day, 119 id. 611, 639. I ; Davis v. Bingham, 39 Misc. Rep. ^ Id., supra; The Bank of the 299. United States v. Housman, 6 Pai. 79 § 840, Code Civ. Proc. ; Kidd v. 526, S3i ; Jackson v. Cadwell, i Cow. Conway, 65 Barb. 158. 622; 4 Kent, Comm. 465. Consideration. 663 sideratiqn to support it,** and a covenant to stand seised is sup- ported only by a consideration of blood or marriage.*^ That the consideration should be actually expressed in the conveyance or deed was not necessary at common law, and is not now.*^ But when sealed, such instruments are prima facie founded on a suffi- cient consideration.*^ The doctrine of consideration when applied to deeds of con- veyance is an obscure subject, and in modern times somewhat dependent on the growth of the doctrine of actionable contracts.** Since the abolition of the feudal system, the tendency of the law is to make a contract of a conveyance, although originally a conveyance was related to the law of status and not to the law of contract.** Just as the ancient conceptions of status are sub- verted and the moderate doctrines of contract elevated, in the legal consideration of modern conveyances, we are sure to find that the doptrine of consideration grows. Thus in modern law it is better to adopt Blackstone's notion, though much controverted, and assume that every deed requires a consideration to support it.^ Such is the tendency of the cases cited above, and especially in equity, for in that forum a reconveyance will even be decreed if the consideration of a conveyance fail.^^ What is true of deeds is a fortiori true of conveyances not under seal, for they are clearly to be treated on the basis of contracts and, therefore, dependent for their enforcement on the doctrine of consideration. Besides, the modern conveyance referred to in this section of this act*^ is regarded as the equivalent of " a bargain and sale " *^ which we have seen always has required a consideration to support it.^ 84 Jackson v. Cadwell, i Cow. 622; N. Y.", pp. 82-86; Wigmore, 4 Col. Jackson v. Delancey, 4 id. 427, note; Law Rev. 342. Wood V. Chapin, 13 N. Y. 509, 517; 89 Feoffments made a man a free- Corwin v. Corwin, 6 id. 342; holder by conveying a fee, and this Schott V. Burton, 13 Barb. 173 ; was its primary function, no doubt. Baird v. Baird, 145 N. Y. 659, 662. 902 Black. Comm. 296; see editor's *5 Supra, p. 3SS, under § 72. note 5 Wendell's Ed. seprest. Abst. of Title; Rogers 9i Med. College Lab. v. N. Y. V. Eagle Ins. Co., 9 Wend. 611, 642, University, 35 Misc. Rep. 80, 79 App. 643; Cunningham v. Freeborn, 11 Div. 48, 178 N. Y. 153; Jones v. Jones, id. 240, 248; Baird v. Baird, 145 40 Misc. Rep. 360. N. Y. 659, 662. 92 § 208, The Real Prop. Law. *'■ § 840, Code Civ. Proc. 93 § 211, The Real Prop. Law. ** See this subject considered in the 9* Supra, p. 662. author's " Personal Property Law of 664 Grants. Ritual of Grant. A " grant "must either be acknowledged before delivery, or its execution and delivery attested by one witness; else it does not take effect against a subsequent purchaser or incumbrancer.®^ But a grant may be good inter partes without either an acknowledgment or an attestation.®^ Presumption of Seal. Where a statute requires a deed to be sealed and recorded in order to operate as notice, and the record shows no seal, it will be presumed, in an action on the instrument, at least, in the absence of proof to the contrary, that the original deed was sealed. In any event such record operates as notice of assign- ment of an equitable title.®'' ®5 § 208, The Real Prop. Law. ^ Dana v. Jones, 91 App. Div. 496 ; ®«Wood V. Chapin, 13 N. ¥.509; 2 Whart. Ev., § 1313. Cf. Tarbell v. Strough V. Wilder, 119 id. 530, 535. West, 86 N. Y. 280. Cf. Reich v. Dyer, 91 App, Div. 240. When Grant Takes Effect. • 665 § 209. When grant takes effect — A grant takes effect, so as to vest the estate or interest intended to be conveyed, only from its delivery; and all the rules of law, now in force, in respect to the delivery of deeds, apply to grants hereafter executed. Formerly i Revised Statutes, 738, section 138: § 138. A grant shall take eflfect, so as to vest the estate or interest intended to be conveyed, only from its delivery ; and all the rules of law now in force in respect to the delivery of deeds, shall apply to grants hereafter to be executed.^ " Grant." At common law the term " grant " was usually^ con- fined to a charter made by the sovereign, or else to the convey- ance of an incorporeal hereditament where livery of seisin could not take place. An incorporeal hereditament was, therefore, said to He in grant.^ Grants, Hke all other deeds, had no effect with- out a delivery.^ As the revisers applied the same principle to all conveyances of freeholds by act of the parties,^ it seemed proper to call these conveyances " grants."* Grants were, however, regarded by the revisers of New York as synonymous with deeds of realty,^ although at the common law a deed did not ex vi termini import a deed of real property.® Delivery. At common law a conveyance did not take effect from delivery of the charter or deed, but from the date of the livery of seisin.'^ Since the Revised Statutes deeds of conveyance, or grants, take effect only from delivery of the deed* to the grantee,^ or to another for the use of such grantee.'" Where the delivery is to a ^8 Repealed, chap. 547, Laws of Bucklin, i Abb. Ct. App. Dec. 242, 1896. 247. *® In regno Hen. VIII, Perkins' * Blewitt v. Boorum, 142 N. Y. 357, Profitable Handbook, p. i, treated 360. " grant " as applicable to any form ^ Challis, 83. of conveyance. 8 Schafer v. Reilly, 50 N. Y. 61, I2 Black. Comm. 317; Archer v. 66; Mitchell v. Bartlett, 51 id. 447; Eckerson, 10 App. Div. 598, 601. Rosseau v. Bleau, 131 id. 177; Ten *2 Black. Comm. 307. Eyck v. Whitbeck, 156 id. 341. 3 I R. S. 738, § 137; § 209, The Real 9 Chauncey v. Arnold, 24 N. Y. Prop. Law. 330, 335; People v. Bostwick, 32 id. * Cf. 4 Kent, Comm. 490; 2 Sanders, 445. Uses & Trusts, 29. "> Diefendorf v. Diefendorf, 132 N. 61 R. S. 739, § 142 ; Bucklin v. Y. 100 ; Faile v. Crawford, 34 App. 666 * Delivery. third person, the assent of the grantee is presumed from the bene- ficial nature of the grant.^^ While deeds of conveyance may be delivered to a third party in escrow, they may not be delivered conditionally to a party to the deed.^2 A deed may be delivered to a third person to be delivered to a corporation to be formed i^^ or the deed may be so delivered to take eiifect on the grantor's death; until which the delivery is revocable by the grantor.^* Delivery of a deed to a recording officer is a good delivery if ratified by the party benefited ;^^ unless such delivery was con- trary to the grantor's intention. ^^ Presumption of Delivery. When a grant is attested there is a presumption of its delivery,^'' and it is presumed to have been delivered on its date,^* unless the acknowledgment is subsequent thereto, when the date of the acknowledgment is to be presumed as the date of its delivery.^* Recording the deed furnishes pre- sumptive evidence of delivery^" and of record by the grantee.^^ Div.278,279;Nat. Bank of Port Jervis i^ Munoz v. Wilson, in N. Y. 295; I V. Bonnell, 26 Misc. Rep. S4i I s. c, Wilcox v. Drought, 71 App. Div. 242 ; 46 App. Div. 302, 305 ; Ranken v. Mannix v. Riordan, 75 id. 135. Donovan, id. 225, 228, and see 1^ Wilcox v. Drought, 71 App. case cited, 3 Col. Law Rev. 276. Div. 402. 11 Munoz V. Wilson, in N. Y. 295; 1^ Hulse v. Bacon, 26 Misc. Rep. Nat. Bank of Port Jervis v. Bonnell, 455; Sweetland v. Buel, 164 N. Y. 46 App. Div. 302; Edlich v. Gminder, 541. 65 id. 496. i^Bigioyj, y Biglow, 39 App. Div. 12 Blewitt v. Boorum, 142 N. Y. 103. 357, 363; Munoz v. Wilson, in id. 19 Guaranty Trust Co. v. Galveston "295. City R. Co., 107 Fed. 311. 13 3 Col. Law Rev. 276. 20 Sweetland v. Buel, 164 N. Y. 1* Rochester Savings Bank v. 541. Bailey, 34 Misc. Rep. 247 ; Yutte v. 21 Sweetland v. Buel, 164 N. Y. Yutte, 39 id. 272. S4I- V Estates Which Pass by Grant or Devise. 667 § 2IO. Estate which passes by grant or devise. — A grant or devise of real property passes all the estate or interest of the grantor or testator unless the intent to pass a less estate or interest appears by the express terms of such grant or devise or by necessary implication therefrom. A greater estate or interest does not pass by any grant or conveyance, than the grantor possessed or could law- fully convey, at the time of the delivery of the deed ; except that every grant is conclusive against the grantor and his heirs claiming from him by descent, and as against a subsequent purchaser or encumbrancer from such grantor, or from such heirs claiming as such, other than a subsequent purchaser or encumbrancer, in good faith and for a valuable consideration, who acquires a superior title by a conveyance that has been first duly recorded. Formerly i Revised Statutes, 739, sections 143, 144, and i Revised Stat- utes, 748, section i : § 143. No greater estate or interest shall be construed to pass by any grant or conveyance, hereafter executed, than the grantor himself possessed at the delivery of the deed, or could then lawfully convey, except that every grant shall be conclusive as against the grantor and his heirs claiming from him by descent.22 § 144. Every grant shall also be conclusive as against subsequent pur- chasers from such grantor, or from his heirs claiming as such, except a sub- sequent purchaser, in good faith and for a valuable consideration, who shall acquire a superior title by a conveyance that shall have been first duly recorded.23 § I. The term " heirs,'' or other words of inheritance, shall not be requi- site to create or convey an estate in fee; and every grant or devise of real estate, or any interest therein, hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear, by express terms, or be necessarily implied in the terms of such grant.^* Construction of Section 210, Supra. The first part of section 210 was, as it stood in the Revised Statutes, addressed to that rule of the common law, that a fee did not pass by deed without an express limitation to the grantee and his heirs ;^® it being a pre- sumption, that a limitation in a deed to " A." alone was a finite 22 Repealed, chap. 547, Laws of 24 Repealed, chap. 547, Laws of 1896. 1896. 23 Repealed, chap. 547, Laws of 26 2 Black. Comm. 107 ; supra, p. 645. 1896. 668 Estates Which Pass by Grant or Devise. grant, or one to " A." for life only.^^ This rule arose in feudal times, before devises were legal, and was intended to determine when a fief was one of inheritance and when one for life only. The term "heirs," or words of inheritance, being no longer necessary to convey a fee,^^ it seemed desirable to make the con- struction of both grants and devises uniform. The presumption now is that all the grantor's or devisor's estate passes under either a devise or a grant.^* Tortious Conveyances Abolished. The provision of the Revised Statutes, now incorporated in this section, to the efifect that a greater interest does not pass by any conveyance than the grantor had, was intended to abolish tortious conveyances. At common law a tortious feoffment with livery of seisin by a person without title passed a fee,^* and after descent cast the real owner's right of entry was tolled, and the remedies of the person thus disseised became very complicated,^" as presumptions of law then favored mere possession to a greater extent than at present.^^ Estoppel. While the Revised Statutes precluded grants by wrong, every grant was made conclusive against the grantor and his heirs.^^ Every grant was also made conclusive as against subse- quent purchasers from a grantor or his heirs, except a bona fide purchaser who acquired a superior title by a conveyance first recorded.^* Conveyance to One's Self. At common law a man could not convey an estate to himself as it was necessary to every gift that there should be a feoffor and feoffee.^* But after the Statute of Uses 2« The same presumption was not release, never passed more than gran- indulged in, in case of a devise, tor's estate. A feoffment with livery Cruise, Dig., tit. 38, chap. 11, § i; of seisin did. Jackson ex dem., etc. supra, p. 645. V. Mancius, 2 Wend. 357; Sparrow v. 27 I R. S. 748, § I ; § 205, The Real Kingman, i N. Y. 242, 250 ; Thomp- Prop. Law. son v. Simpson, 128 id. 270, 285. 28 Nicoll V. N. Y. & E. R. R. Co., 3<> 2 Black. Comm. 176. 12 N. Y. 121, 129; Sheehan v. Hamil- 3* Sage v. Cartwright, 9 N. Y. 49; ton, 4 Abb. Ct. App. Dec. 211, 216; Moore v. Littel, 41 id. 66, 78. Heath v. Barmore, 50 N. Y. 302, 306 ; ^^1 R. 5.Ji3g, § 143 ; Thompson v. Terry v. Wiggins, 47 id. 512; Byrnes Simpson, 126 N. Y. 270, 286. V. Baer, 86 id. 210; Mason v. Thwing, 33 i R. S. 739, § 144; Hetzel v. Bar- 94 App. Div. 77 ; supra, p. 646, ber, 69 N. Y. i, 9. § 205. 34 Sugden. Intd. to Gilbert, Uses, 29 A bargain and sale, or lease and xli. Estates Which Pass by Grant or Devise. 669 a conveyance might be made to the use of grantor, which to some extent was a conveyance to one's self. If this conveyance took efifect by transmutation of the possession, it required a person to be seised to the use. But tenant in fee simple might after the statute covenant to stand seised for himself for life and then remainder to the use of a brother or sister, and the consideration was held sufificient to support the deed.^^ At present under our statute it is held that tenants in common may convey to themselves and a third person to hold as joint tenants.^® Conveyance between Husband and Wife. A husband could not at common law convey directly to his wife.^^ Nor could he even covenant with her alone to stand seised to her use. But now by statute they may convey directly to one another without the inter- vention of a third person.*^ 35 Sharington v. Strotton, Plowd. 37 Litt., § i68 ; supra, p. 38. 300. 38 Smith, Real & Pers. Prop. 575. 36Colson v. Baker, 42 Misc. Rep. 39 chap. 537, Laws of 1887, now 407- § 26, " The Domestic Relations Law." ■/ ■/ 670 Certain Deeds Declared to be Grants. § 211. Certain deeds declared grants. — Deeds of bargain and sale, and of lease and release, may continue to be used; and are to be deemed grants, subject to all the provisions of law in relation thereto. Formerly i Revised Statutes, 739, section 142: § 142. Deeds of bargain and sale, and of lease and release, may continue to be used, and shall be deemed grants; and as such, shall be subject to all the provisions of this Chapter, concerning grants.*" " Bargain and Sale." The deed of bargain and sale is the prevailing type of conveyance in the United States. While conveyance by bargain and sale was familiar in equity before the Statute of Uses*i (27 Hen. VIII, chap. 10), this form of conveyance in after times came to owe its force entirely to the Statute of Uses.^^ There must have been some one seised to the use in every bargain and sale, or else there could be no execution by force of the statute. If A., being seised, bargained to sell, and received a valuable con- sideration, the use vested in the bargainee by force of the statute. By statute 27 Henry VIII, chapter 16, all bargains and sales were thereafter to be enrolled. In this way written deeds of bargain and sale became necessary by law before the Statute of Frauds required other conveyances to be in writing. " Bargains and sales," although not common-law conveyances,*^ were very practical and simple in operation. When founded on a valuable consideration the fee simple might pass without limitation.** Remainders and reversions might pass by bargain and sale enrolled, as well as by grant.*^ The deed of " bargain and sale " for a year constituted a good lease.*^ " Lease and Release." A conveyance substantially by way of lease and release was probably not unknown before the Statute of Uses,*'' but this form of conveyance .became popular after that statute when it was known to avoid the necessity of enroll- ments of deeds of bargain and sale. A bargain and sale for a year upon a pecuniary consideration being made, the legal estate imme- 40 Repealed, chap. 547, Laws of ** 10 Vin. Abr. 235, Estate, K. 2, 1896. ^l^^L_ *i 2 Sand. Uses & Trust, 53. 4B^"~:Prestr-Abst. of Title, 85. *2 Gilb. Uses & Trusts, 285. 46 2 Black. Coram., Appendix II. 43 Introduction, p. 34, supra. 47Litt. § 459. Certain Deeds Declared to be Grants. 671 diately vested in the bargainee by force of the Statute of Uses. This did not require enrollment under the Statute of Inrolments.*^ The bargainee could then receive a release of the reversion. Ultimately the lease and release came to be contained in the same deed. Prior to 1788, and while it was thought that the EngHsh Statute of Inrolments might extend to New York, the common form of conveyance here was by lease and release. At a later day, however, it was held that that statute did not extend to New York.*^ Finally, when the English statutes were all repealed or re-enacted, bargain and sale deeds were revived and became the commoner form of conveyance in New York.^" The deed of lease and release was practically nothing but a re- lease of the reversion to one possessed of a term, in some way, either actually ,^^ or by force of the Statute of Uses. The release operated at common law by way of enlargement of the term created by the lease. The learning upon the subject of conveyance by way of lease and release is very comprehensive.^^ Conveyances Prior to the Revised Statutes. Both forms of conveyance just mentioned were in such common use in 1830, that their reten- tion was deemed necessary after the Revised Statutes,^^ although such conveyances were, as Mr. Sanders acutely observed, nothing more than declarations of uses,^^ and derived their force and effect primarily from the Statute of Uses. But the revisers of 1829 evi- dently had in contemplation the deed associated with these forms of conveyance and not the Statute of Uses, for they placed them on the same footing as " grants," ®^ which take effect only from delivery; and on this footing they continue under the present law, taking effect only from delivery of the deed.^® It is obvious that these types of conveyance were thus intended to be put, for the future, on the basis of all written contracts, and thus taken out of the historic realm of conveyances operating under the Statute of ^^28 Hen. VIII, chap. 16. ^^2 Preston, Conveyancing, 207. ** Jackson v. Dunsbagh, i Johns. ^^ Supra, i R. S. 739, § 142 ; Archer Cas. 91, 97; Rogers v. Eagle Fire v. Eckerson, 10 App. Div. 598, 601. Ins. Co., 9 Wend. 611, 640. ^* i Sand. Uses & Trusts, 219. BO 4 Kent, Comm, 495. 6b j r. s. 738) § 138. 81 Litt., § 459. Cf. 2 Black. Comm. ^^ § 209, supra. 339- 672 Certain Deeds Declared to be Grants. Uses.^'^ Although the real differences between " grants " and con- tract or deeds of bargain and sale may not be wide, the historical differences are most marked. Language of Such Deeds. No particular form of words is neces- sary to constitute a deed of bargain and sale.^* Consideration. A valuable consideration is necessary to support a deed of bargain and sale.^* ^'^ Cf. Bucklin v. Bucklin, i Abb. lin, 29 N. Y. 572, 584; et vide supra, Ct. App. Dec. 242, 247; Cunningham p. 646. V. Freeborn, 11 Wend. 240, 248. ^^ Supra, pp. 662, 670. ^8 Long Island R. R. Co. v. Conk- Effect of Tortious Conveyances. 673 § 2 1 2. Conveyance by tenant for life or years of greater estate than possessed. — A conveyance made by a tenant for life or years, of a greater estate than he possesses, or can lawfully convey, does not work a forfeiture of his estate, but passes to the grantee all the title, estate or interest which such tenant can lawfully convey. Formerly i Revised Statutes, 739, section 145: § 145. A conveyance made by a tenant for life or years of a greater estate than he possessed or could lawfully convey, shall not work a forfeiture of his estate, but shall pass to the grantee all the title, estate or interest, which such tenant could lawfully convey.^" Comment on Section 212, Supra. At the common law alienations by particular tenants®^ of a greater estate than they had, severed the feudal relation, or in other words, was a cause of forfeiture to the feudal superiors, and thus in time, no doubt, by analogy, a cause of forfeiture to him in reversion or remainder.^^ In New York, this rule existed until the Revised Statutes abolished every vestige of it."^ But before the Revised Statutes a conveyance by tenant by the curtesy, although purporting to convey a fee, would not always work a forfeiture unless made by feoffment with livery of seisin."* If a tenant for life or years has, before the wrongful conveyance spoken of in this section, made a good and proper conveyance, or one within his rights and powers to make, such prior conveyance is good by the common law,*'' and the effect of the tortious con- veyance is not enlarged by this section, so as to affect harmfully such prior conveyance. *<> Repealed, chap. 547, Laws, of Hill, 554 ; Sparrow v. Kingman, i N. i8g6. Y. 242, 257; Moore v. Littel, 41 id. *i Not tenants in tail, 2 Black. 66, 78. Comm. 274. ^ Jackson v. Mancius 2 Wend. 357. 62 Litt. 415 ; 2 Black. Comm. 274. Cf. Christie v. Gage, 71 N. Y. 189. 684 Kent, Comm. 34; i R. S. 739, sSaBlack. Comm. 275. §§ 143, 14s; Grout V. Townsend, 2 43 674 Effect of Payment of Rent Before Notice. § 213. Effect of conveyance where property is leased. — An attornment to a grantee is not requisite to the validity of a conveyance of real property occupied by a tenant, or of the rents or profits thereof, or any other interest there- in. But the payment of rent to a grantor, by his tenant, before notice of the conveyance, binds the grantee; and the tenant is not liable to such grantee, before such notice, for the breach of any condition of the lease. Formerly i Revised Statutes, 739, section 146: § 146. Where any lands or tenements shall be occupied by a tenant, a conveyance thereof, or of the rents or profits, or of any other interest therein, by the landlord of such tenant, shall be valid without any attornment of such tenant to the grantee; but the payment of rent to such grantor, by his tenant, before notice of the grant, shall be binding upon such grantee; and such tenant shall not be liable to such grantee for any breach of the con- dition of the demise, until he shall have had notice of such grant.^s Attornment. In the feudal law the rights of lord and tenant were reciprocal and the lord could not assign the seigniory (sometimes called the " escheat ") without the tenant's consent.*^ This consent, or attornment, was originally coram paribus and in later days must be sufiSciently attested.® With the decline of the feudal system attornments became compulsory.*® The necessity of attornment was much avoided by the Statute of Uses, by which the possession was executed to the use, and it was taken away by the statutes, 4 Anne, chapter 16, and 11 George II, chapter 19, re-enacted in New York in 1773, 1774 and 1788."* The Revised Statutes simply re- enacted the substance of the earlier acts.''^ Attornment has been treated of under a preceding section.''^^ Attornment may be made orally or by writing, or by payment of rent.''^ Clause Saving Rents Paid before Notice. The statute saving rents paid by tenant to grantor before notice of conveyance was in affirm- ance of the common law.''* 68 Repealed, chap. 547, Laws of ™ 2 J. & V. 281 ; i R. L. 525. Vide 1896. pp. 620-622, supra. ^TCf. 2 Poll. & Mait. Hist Eng. ''i i R. S. 739, § 146; Moffatt v. Law, 93, 127 ; note 272, Co. Litt. 309a ; Smith, 4 N. Y. 126 ; O'Donnell v. Mc- et supra under § 194, The Real Prop. Intyre, 37 Hun, 623. Law, pp. 620-622. ''^ § 194, The Real Prop. Law. 6* Watkins, Descents, 1 16. '^^ Tomlin's Lyttleton, chap. X. «9 I Poll. & Mait. Hist. Eng. Law, ^4 Pollock, Cont. 224, citing Willes, 329; 2 id. 93. Vide under § 194, The J., L. R., 5 C. P. 594. Real Prop. Law, pp. 620-622, supra. Covenants in Mortgages. 675 § 214. Covenants in mortgages. — A mortgage of real prop- erty does not imply a covenant for the payment of the sum intended to be secured; and where such covenant is not expressed in the mortgage, or a bond or other separate instrument to secure such payment, has not been given, the remedies of the mortgagee are confined to the prop- erty mentioned in the mortgage. Formerly i Revised Statutes, 738, section 139 : § 139. No mortgage shall be construed as implying a covenant for the pay- ment of the sum intended to be secured ; and wrhere there shall be no express covenant for such payment, contained in the mortgage, and no bond or other separate instrument to secure such payment, shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage.''^ Object of this Enactment. The original revisers intended by this section to nullify an intimation of the courts, to the effect that even without an express covenant a mortgage imported a covenant to pay the money.'^^ No Covenant now Implied. No covenant is now implied in any conveyance except a lease.'^^ Mortgages without Covenant to Repay. But where a mortgage, with- out a covenant to repay, is taken for the security of a pre- existing debt, such indebtedness is not discharged, unless it is so intended.''* Without a pre-existing debt, or a covenant to pay the sum loaned, a mortgagee can look to the land only.'® If the mort- gage discloses an intention to make the obligation personal, the covenant to pay need not be in any particular form.*" The absence of a personal liability does not, however, make the instrument any the less a mortgage,*^ and, consequently, the mortgagor can re- ■^5 Repealed, chap. 547, Laws of Gaylord v. Knapp, 15 Hun, 87; 1896. Lazarus v. Rosenberg, 70 App. Div. 'i'fi Revisers' note to i R. S. 738, 105, 108. § 139- 80 Elder v. Rouse, 15 Wend. 218; '''§ 216, The Real Prop. Law. Coleman v. Van Rensselaer, 44 How. ■'SHone V. Fisher, 2 Barb. Ch. 559. Pr. 368; Smith v. Rice, 12 Daly, 307. ™ Spencer v. Spencer, 95 N. Y. 353 ; 81 Brown v. Dewey, i Sandf. Ch. Mack v. Austin, id. 513; Hone v. 56; Matthews v. Sheehan, 69 N. Y. Fisher, 2 Barb. Ch. 559; Coleman v. 585, 591. Van Rensselaer, 44 How. Pr. 368; 676 Covenants in Mortgages. deem before foreclosure. Even where a bond is void for want of consideration, a mortgage, being under seal, is prima facie valid.^^ This section has no application to mortgages of lands situated out of this State.*^ Mortgage by One without Title. A mortgage by a person without title, if containing no covenant of warranty or seisin, does not operate by way of estoppel if the mortgagor afterward acquire title.8* 82 Kidd V. Conway, 65 Barb. 158. ** Donovan v. Twist, 85 App. Div. ** Thayer v. Marsh, 11 Hun, 501; 130. s. c, 75 N. Y. 340. When Heir Must Discharge Mortgage. 677 § 215. Mortgages on real property inherited or devised. — Where real property, subject to a mortgage executed by any ancestor or testator, descends to an heir, or passes to a devisee, such heir or devisee must satisfy and discharge the mortgage out of his own property, without resorting to the executor or administrator of his ancestor or testa- tor, unless there be an express direction in the will of such testator, that such mortgage be otherwise paid. Formerly i Revised Statutes, 749, section 4 : § 4. Whenever any real estate, subject to a mortgage executed by any ancestor or testator, shall descend to an heir, or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage, out of his own property, without resorting to the executor or administrator of his ancestor, unless there be an express direction in the will of such testator, that such mortgage be otherwise paid.^^ Old Law. Prior to the Revised Statutes, where the testator or intestate had given a bond or other personal security for a mort- gage debt, the personal estate was the primary fund for the pay- ment of the debt, and the heir or devisee might have thrown the charge on the personal representatives.*® The Revised Statutes. The Revised Statutes changed the rule last mentioned in respect of wills taking effect after January i, 1830,*^ and in regard to both devises and intestacy.** Land now Primary Security for Mortgage Debts. Land mortgaged is now the primary fund for the payment of mortgage debts,*^ unless the decedent by his will makes a different provision.*^ This sec- tion applies as well to mortgages assumed by decedents as to those made by them.*^ The personal estates of decedents are now liable 85 Repealed, chap. 547, Laws of Johnson v. Corbett, 11 id. 265; 1896. Wright V. Holbrook, 32 N. Y. 587. *6 Revisers' note to i R. S. 749, 88 House v. House, 10 Paige, 158; § 4. See White & Tudor's notes to supra, p. 395. Duke of Ancaster v. Mayer, i Lead. ^^Erwin v. Leper, 43 N. Y. 521, Cas. in Eq. 723 seq.; Cumberland v. 525. Codrington, 3 Johns. Ch. 229 ; MoUan 90 Van Vechten v. Kealor, 63 N. Y. V. Griffith, 3 Paige, 402 ; et vide supra, 52, 56. p. .394- '^ Halsey v. Reed, 9 Paige, 446, 87 Mollan V. Griffith, 3 Paige, 402, 454. 404; Halsey v. Reed, 9 id. 446, 454; 678 When Heir Must Discharge Mortgage. only for deficiencies, unless the will makes different provision.®^ The heir or devisee is not personally liable.®* Equitable Liens. But this section does not apply to equitable liens growing out of contracts to purchase estates by decedents.^ When Equity Compels Mortgagee to Seek Payment out of Real Estate. While the mortgagee is not precluded by this section from resort- ing to either real or personal estates of decedents, a court of equity will not permit him to seek payment out of the personal estate where it is inequitable.,"^ It has been also held that " the provision of the Revised Statutes (i R. S. 749, § 4) requiring a devisee or heir to satisfy, out of his own property, a mortgage executed by his testator or ancestor upon real estate which has passed or de- scended to him, unless there is an express testamentary direction that such mortgage shall be otherwise paid, does not contemplate that the devisee or heir should be so liable irrespective of the prop- erty which descended to him, but rather that his liability to pay the mortgage should be measured by and not exceed the valufe of that property. The law was designed to make the realty primarily chargeable with the mortgaged debt, and that the heir should take it cum onere. It was not, however, intended to give a mortgage creditor preference over other creditors in respect to property not covered by the mortgage.®" 92 Glacius V. Fogel, 88 N. Y. 434. ^ Hauselt v. Patterson, 124 N. Y. 93Hauselt v. Patterson, 124 N. Y. 349; Rice v. Harbeson, 63 id. 493. 349. ^ Hauselt v. Patterson, supra; 9* Wright V. Holbrook, 32 N. Y. Matter of Berry, 23 Misc. Rep. 230. 587. Covenants not Implied. 679 § 216. Covenants not implied. — A covenant is not implied in a conveyance of real property, whetlier the conveyance contains any special covenant or not. Formerly i Revised Statutes, 738, section 140: § 140. No covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.^'^ Common Law. In their note to this section the original revisers stated the former common law of this State very concisely : " (i) A conveyance in fee does not, of itself, imply a covenant of title,®® but the word give, in such a conveyance, implied a war- ranty for the life of the grantor .^^ " (2) The words grant and infeoff imported a warranty in an estate for years, but not in an estate in fee.^ " (3) An express covenant in the deed takes away all implied covenants." - Revised Statutes. The Revised Statutes produced uniformity in the foregoing rules by the abolition of all implied covenants.^ Enactment did not Extend to Leases. At first there was doubt whether this section extended to leases, or was to be confined to other conveyances.* It was finally adjudged that it did not extend to leases or executory agreements.^ Probibly this decision is not reopened by the re-enactment of this article of this act. Section 205 declares that the term " conveyance," as used in this article, includes every instrument, except a will, by which any estate or interest in real property is created, transferred, assigned or sur- rendered; and the qualifying section on which the decision rests, is re-enacted.® A " lease in perpetuity," as a conveyance in fee, 9'' Repealed, chap. 547, Lavirs of v. Jackson, 9 id. 535, 541. Sed cf. i8g6. p. 177, supra, " Fee Farms." 98 Frost v. Raymond, 2 Caines, 188. ^ Mayor, etc., of New York v. Ma- 99 Id. at p. 19s; Kent v. Welch, 7 bie, 13 N. Y. 151, 158; Daly v. Wise, Johns. 258. 132 id. 306. See controversy on 1 Frost V. Raymond, 2 Caines, 188. this point treated in Rawle, Cove- ^Vanderkarr v. Vanderkarr, 11 nants, § 272, note 3 (sth ed., p. 438), Johns. 122. and Chapl. Landl. & Ten., chap. 3 Revisers' note to i R. S. 738, VIII ; also 3 Columbia Law Rev. 43. § 140. Cf. Zorkowski v. Astor, 156 N: Y. 393. * Kinney v. Watts, 14 Wend. 38 ; " § i, The Real Prop. Law, re-en- Tone V. Brace, 8 Paige, 597; Burr v. acting i R. S. 750, § 10. Stenton, 43 N. Y. 462, 464; Burwell 680 Covenants not Implied. subject to a rent charge, is called in this State,'' is, however, a conveyance and within this section.* Purchasers must now see to Insertion of Appropriate Covenants. As covenants are not now implied in conveyances, the law throws upon purchasers the responsibility of protecting themselves by the in- sertion of proper covenants in deeds. ^ Certain Words no Longer Import Covenants. The words " dedi," " concessi," " demist," and their English equivalents, no longer im- port covenants in conveyances as they did at common law.^" At common law these words in themselves imported and made a cove- nant in law/^ as if a man, by deed, demised land for years, and the lessee was ousted, covenant lay upon the word " demised." ^^ It was said in Kinney v. Watts, no doctrine was better settled, and it was this doctrine which the Revised Statutes designed to abrogate.^^ Mortgage. A covenant to repay the debt is not implied in a mort- gage ; ^* nor is a covenant of warranty or seisin implied to support an estoppel.^^ ^ Supra, p. 177. 12 Elphinstone, Interpretation of 8 Carter v. Burr, 39 Barb. 59. Deeds, 423. 9 Leggett V. Mut. Life Ins. Co., 53 ^^ Kinney v. Watts, 14 Wend, at N. Y. 394, 398; Sandford v. Travers, p. 40. 40 id. 140; Burrell v. Jackson, 9 id. 1* § 214, The Real Prop. Law. 535, 541 ; Read v. The Erie Railway ^^ Donovan v. Twist, 85 App. Div. Co., 97 id. 341, 348. 130; Thompson v. Schenectady Ry. 10 Kinney v. Watts, 14 Wend. 38. Co., 124 Fed. 274. 11 Comyn, Dig., tit. Cov., art. 4. Lineal and Collateral Warranties Abolished. 681 § 217. Lineal and collateral warranties abolished Lineal and collateral warranties, with all their incidents, have been abohshed; but the heirs and devisees of a person, who has made a covenant or agreement, are answerable thereon, to the extent of the real property descended or devised to them, in the cases and in the manner pre- scribed by law. Formerly i Revised Statutes, 739, section 141 : § 141. Lineal and collateral warranties, with all their incidents, are abolished ; but the heirs and devisees of every person who shall have made any covenant or agreement, shall be answerable upon such covenant or agreement, to the extent of the lands descended or devised to them, in the cases and in the manner prescribed by law.l^ Warranties at Common Law. A warranty, by the common law, is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same." Warranties were divided into three classes — lineal, collateral and those that com- menced by disseisin}^ By lineal warranty was meant the lineal heir's legal obligation to give to the ancestor's warrantee lands of equal value (in case the warranty was broken) out of other real assets if he received any.^® Collateral warranty was founded on a fiction by which the collateral heir was presumed to have assets and was made liable in like manner.^" Collateral warranties were restricted long before the Revised Statutes abolished them.^"^ The Revised Statutes. The Revised Statutes abolished both lineal and collateral warranties with all their incidents, but regulated lineal warranties or the heir's obligations for the ancestor's war- ranty by appropriate provision of the statute. ^^ Statute of Limitations. The heir may avail of the Statute of Limi- tations to the same extent that the ancestor might, in an action.^^ 1® Repealed, chap. 547, Laws of 4 & S Anne, chap. 16 ; Trolan v. Rog- 1896. ers, 88 Hun, 422; 2 Van Schaack'^ i'^ Co. Litt. 36sa. N. Y. Laws, 767, 770, chap. 1610, i^Litt., § 697, and see Tom. Litt. enacted 8 March, 1773. 648 ; Gilb. Tenures, 140, 141 ; 2 Black. 22 2 R. S. 109, § S3 ; id. 452 ; id. 453 ; Coram. 301. Revisers' note to i R. S. 739, § 141 ; 19 Cruise, Dig., tit. 32, chap. 25, Hill v. Ressegieu, 17 Barb. 162, 168; §§ 22, 23. Trolan v. Rogers, 88 Hun, 422 ; Pyatt 20 Cruise, Dig., tit. 32, chap. 23, v. Waldo, 85 Fed. 399. « 27. 23 Pyatt v. Waldo, 85 Fed. 399. 21 2 J. & V. 281 ; I R. L. 52s, § 26 ; .682 Construction of Covenants in Short Forms. § 218. Construction of covenants in grants of freehold interests. — In grants of freehold interests in real property, the fol- lowing or similar covenants must be construed as follows: I. Seizin. — A covenant that the grantor "is seized of the said premises (described) in fee simple, and has good right to convey the same," must be construed as meaning that such grantor, at the time of the execution and delivery of the conveyance, is lawfully seized of a good, absolute and indefeasible estate of inheritance in fee simple, of and in all and singular the premises thereby conveyed, with the tenements, hereditaments and appur- tenances thereto belonging, and has good right, full power and lawful authority to grant and convey the same by the said conveyance. 2. Quiet enjoyment. — A covenant that the grantee " shall quietly enjoy the said premises," must be con- strued as meaning that such grantee, his heirs, successors and assigns, shall and may, at all times thereafter, peace- ably and quietly have, hold, use, occupy, possess and enjoy the said premises, and every part and parcel thereof, with the appurtenances, without any let, suit, trouble, molestation, eviction, or disturbance of the grantor, his heirs, successors or assigns, or any person or persons law- fully claiming or to claim the same. 3. Freedom from encumbrances. — A covenant " that the said premises are free from encumbrances," must be con- strued as meaning that such premises are free, clear, dis- charged and unencumbered of and from all former and other gifts, grants, titles, charges, estates, judgments, taxes, assessments, liens and encumbrances, of what nature or kind soever. 4. Further assurance — A covenant that the grantor will " execute or procure any further necessary assurance of the title to said premises," must be construed as mean- ing that the grantor and his heirs or successors, and all and every person or persons whomsoever lawfully or equitably deriving any estate, right, title or interest of, in, or to the premises conveyed by, from, under, or in trust for him or them, shall and will at any time or times there- after upon the reasonable request, and at the proper costs and charges of the grantee, his heirs, successors and assigns, make, do, and execute, or cause to be made, done and executed, all and every such further and other lawful Construction of Covenants in Short Forms. 683 and reasonable acts, conveyances and assurances in the law for the better and more effectually vesting and con- firming the premises thereby granted or so intended to be, in and to the grantee, his heirs, successors or assigns forever, as by the grantee, his heirs, successors or assigns, or his or their counsel learned in the law shall be reason- ably advised or required. 5. Warranty of title — A covenant that the grantor " will for ever warrant the title " to the said premises, must be construed as meaning "that the grantor and his heirs, or successors, the premises granted, and every part and parcel thereof, with the appurtenances, unto the grantee, his heirs, successors or assigns, against the grantor and his heirs or successors, and against all and every person and persons whomsoever lawfully claiming or to claim the same shall and will warrant and forever defend. 6. Grantor has not encumbered — A covenant that the grantor " has not done or suffered anything whereby the said premises have been encumbered," must be construed as meaning that the grantor has not made, done, com- mitted, executed, or suffered any act or acts, thing or things whatsoever, whereby or by means whereof, the above mentioned and described premises, or any part or parcel thereof, now are, or at any time hereafter shall or may be impeached, charged or incumbered in any manner or way whatsoever. Comment on Section 218, Supra. This section was taken from sec- tion I, chapter 475, Laws of 1890,^* designed to encourage the use of short forms of deeds and mortgages. It is to be read in con- nection with sections 223 and 274 of this act. Assessments. The covenant that the said premises are free from incumbrances means free from all liens whatsoever, including as- sessments fully confirmed, but not those partly confirmed.^ Short Form. Unless the short form of covenants is adopted throughout, and the pleader pleads on the statute, the covenantee may lose the benefit of the statutory construction.^® 2* Repealed, chap. 547, Laws of 26 Mut. Benefit Loan Co. v. Jaeger, 1896. 34 App. Div. 90 ; Rawle, Cov. for Tit. 25 Real Estate Corporation v. (sth ed.) 454, note 4. Harper, 174 N. Y. 123. 684 Construction of Covenants in Short Forms. § 219. Construction of covenants in mortgages and bonds. — In mortgages of real property, and in bonds secured thereby, the following or similar covenants must be con- strued as follows: 1. Agreement that whole sum shall become due The words " and it is hereby expressly agreed that the whole of the said principal sum shall become due at the option of said mortgagee' or obligee after default in the payment of any installment of principal or of interest for days, or after default in the payment of any tax or assess- ment for days after notice and demand," must be construed as meaning that should any default be made in the payment of any installment of principal or any part thereof, or in the payment of the said interest, or of any part thereof, on any day whereon the same is made pay- able, or should any tax or assessment, which now is or may be hereafter imposed upon the premises hereinafter de- scribed, become due or payable, and should the said in- terest remain unpaid and in arrear for the space of days, or such tax or assessment remain unpaid and in arrear for days after written notice by the mort- gagee or obligee, his executors, administrators, successors or assigns, that such tax or assessment is unpaid, and de- mand for the payment thereof, then and from thenceforth, that is to say, after the lapse of either one of said periods, as the case may be, the aforesaid principal sum, with all arrearage of interest thereon, shall, at the option of the said mortgagee or obligee, his executors, administrators, successors or assigns, become and be due and payable im- mediately thereafter, although the period above limited for the payment thereof may not then have expired, anything thereinbefore contained to the contrary thereof in any wise notwithstanding. 2. In default of payment, mortgagee to have power to sell. — A covenant that the mortgagor "will pay the indebted- ness, as provided in the mortgage, and if default be made in the payment of any part thereof, the mortgagee shall have power to sell the premises therein described, accord- ing to law," must be construed as meaning that the mort- gagor for himself, his heirs, executors and administrators or successors, doth covenant and agree to pay to the mortgagee, his executors, administrators, successors and assigns, the principal sum of money secured by said mort- Construction of Covenants in Short Forms. 685 gage, and also the interest thereon as provided by said mortgage. And if default shall be made in the payment of the said principal sum or the interest that may grow due thereon, or of any part thereof, that then and from therce- forth it shall be lawful for the mortgagee, his executors, administrators or successors to enter into and upon all and singular the premises granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said mortgagor, his heirs, exec- utors, administrators, successors and assigns therein, at public auction, according to the act in such case made and provided, and as the attorney of the mortgagor for that purpose duly authorized, constituted and appointed, to make and deliver to the purchaser or purchasers thereof a good and sufficient deed or deeds of conveyance for the same in fee simple (or otherwise, as the case may be) and out of the money arising from such sale, to retain the principal and interest which shall then be due, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the pur- chase-money, if any there shall be, unto the mortgagor, his heirs, executors, administrators, successors or assigns, which sale so to be made shall forever be a perpetual bar both in law and equity against the mortgagor, his heirs, successors and assigns, and against all other persons claiming or to claim the premises, or any part thereof by, from or under him, them or any of them. 3. Mortgagor to keep buildings insured. — A covenant " that the mortgagor will keep the buildings on the said premises insured against loss by fire, for the benefit of the mortgagee," must be construed as meaning that the mort- gagor, his heirs, successors and assigns will, during all the time until the money secured by the mortgage shall be fully paid and satisfied, keep the buildings erected on the premises insured against loss or damage by fire, to an amount and in a company to be approved by the mortgagee, and will assign and deliver the policy or policies of such insurance to the mortgagee, his executors, administrators, successors or assigns, so and in such manner and form that he and they shall at all time and times, until the full pay- ment of said moneys, have and hold the said policy or policies as a collateral and further security for the payment of said monejr, and in default of so doing, that the mort- 686 Construction of Covenants in Short Forms. gagee or his executors, administrators, successors or as- signs, may make such insurance from year to year, in a sum not exceeding the principal sum for the purposes afore- said, and pay the premium or premiums therefor, and that the mortgagor will pay to the mortgagee, his executors, administrators, successors or assigns, such premium or pre- miums so paid, with interest from the time of payment, on demand, and that the same shall be deemed to be secured by the mortgage, and shall be collectible thereupon and thereby in like manner as the principal moneys, and in default of such payment by the mortgagor, his heirs, executors, ad- ministrators, successors or assigns, or of assignment and delivery of policies as aforesaid the whole of the principal sum and interest secured by the mortgage shall, at the option of the mortgagee, his executors, administrators, successors or assigns, immediately become due and payable. 4. Mortgagor to give further assurance of title A covenant that the mortgagor " will execute any further necessary assurance of the title to said premises, and will forever warrant said title," must be construed as meaning that the mortgagor shall and will make, execute, acknowl- edge and deliver in due form of law, all such further or other deeds or assurances as may at any time hereafter be reasonably desired or required for the more fully and effectually conveying the premises by the mortgage described, and thereby granted or intended so to be, unto the said mortgagee, his executors, administrators, successors or assigns, for the purpose aforesaid, and unto all and every person or persons, corporation or corpora- tions, deriving any estate, right, title or interest therein, under the said indenture of mortgage, or the power of sale therein contained, and the said granted premises against the said mortgagor, and all persons claiming through him will warrant and defend. Comment on Section 215, Supra. This section was originally taken from section 4, chapter 475, Laws of 1890,^'' an act designed to relieve the public record offices by encouraging shorter forms of 27 Repealed, chap. 547, Laws of 1896. Construction of Covenants in Short Forms. 687 conveyance. An error in the original enactment of the first sub- division of this section of The Real Property Law was corrected by chapter 277, Laws of 1897, so as to read as that section now stands in this edition of The Real Property Law. This section is to be read in connection with sections 223 and 274 of this act. Unless the mortgagee adopt the short form throughout, and pleads on the statute, he may lose the benefit of the statutory construction.^* 28 Mut. Benefit Loan Co. v. Jaeger, 34 App, Div. 90; and see Rawle, Cov. for Tit. (sth ed.) p. 454, note 4 688 Construction of Covenants in Short Forms. § 220. Construction of grant of appurtenances and of all the rights and estate of grantor In any grant or mortgage of freehold interests in real estate, the words, "together with the appurtenances and all the estate and rights of the grantor in and to said premises," must be construed as meaning, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, dower and right of dower, curtesy, and right of curtesy, property, possession, claim and demand whatsoever, both in law and in equity, of the said grantor of, in and to the said granted premises and every part and parcel thereof, with the appurtenances. Comment on Section 220. This section of The Real Property Law was originally enacted in section 2 of chapter 475, Laws of 1890,^^ and was taken verbatim from that law by the Commissioners of Statutory Revision. Object of Section 220. This section was designed to relieve the public record offices, without the necessity of changing established forms of conveyance. It was not designed to enlarge or diminish the reciprocal obligations of grantor and grantee, or of mortgagor and mortgagee, of freehold estates and interests. It would be quite competent for the Legislature to abridge still further the records of ancient forms of conveyance by acts declaring that certain words or signs should stand for stereotyped clauses of such conveyances. Penalty for Using Long Forms of Covenants. Section 220 of The Real Property Law should be read in connection with section 223 and also with section 274 of the same act, prescribing the penalty for using long forms of covenants. The importance of employing the short form throughout a con- veyance, has been adverted to, under the last preceding section. 29 Repealed, chap. 547, Laws of 1896. Construction of Executors' and Trustees' Deeds. 689 §221. Construction of grant in executor's or trustee's deed of appurtenances, and of the es'tate of testator and grantor. — In any deed by an executor of, or trustee under a will, the words " together with the appurtenances and also all the estate which the said testator had at the time of his decease in said premises, and also the estate therein which said grantor has or has power to convey or dispose of, whether individually or by virtue of said will or otherwise," must be construed as meaning, together with all and singular the tenements, hereditaments and appurtenances there- unto belonging, or in anywise appertaining, and the rever- sion and reversions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title, in- terest, property, possession, claim and demand whatsoever, both in law and equity, which the said testator had in his lifetime, and at the time of his decease, or which the said grantor has or has power to convey or dispose of, whether individually or by virtue of the said last will and testament or otherwise, or in and to the said granted premises, and every part and parcel thereof, with the appurtenances. Comment on Section 221. This section of The Real Property Law was originally enacted in section 3, chapter 475, Laws of 1890.^" This section is to be read in connection with section 223 of this act. Object of Section 221. This section is a re-enactment of part of a law which was originally designed to aid the public record offices, by dispensing with the necessity of repeating in the record of con- veyances long stereotyped forms. The section was not designed to alter or change the reciprocal rights and obligations of grantor or grantee, under the longer forms of executors' or trustees' deeds. Penalty for Using Long Forms of Covenants. Section 221 of this act should be read in connection with section 223 and section 274 of this act, which last prescribes a penalty for the use of long forms of covenants. Short Form. A deviation from the short form, if that form is in- tended to be used, may be attended with unfortunate results. It should be adopted in its entirety, or rejected. ^^ so Repealed, chap. 547, Laws of 34 App. Div. 90; and see Rawle, Cov. 1896. for Tit. (5th ed.) p. 454, note 4. 31 Mut. Benefit Loan Co. v. Jaeger, 44 690 Covenants Bind Grantor's Representatives. § 222. Covenants to bind representatives of grantor and mort- gagor and enure to the 'benefit of whom — All covenants contained in any grant or mortgage of real estate bind the heirs, executors, administrators, successors and assigns, of the grantor or mortgagor, and enure to the benefit of the heirs, executors, administrators, successors and assigns of the grantee or mortgagee in the same manner and to the same extent, and with like effect as if such heirs, exec- utors, administrators, successors and assigns were so named in such covenants, unless otherwise in said grant or mortgage expressly provided. Comment on Section 222. This section of " The Real Property Law " was originally enacted in section 5, chapter 475, Laws of 1890.^^ The design of the act, from which this section of The Real Property Law is taken, was to relieve the various public record offices from the necessity of spreading out on the records long forms, commonly employed in conveyances of real estate. This section is not designed to change the established reciprocal rela- tions of grantor and grantee or of mortgagor and mortgagee. It is to be read in connection with the next section of this act.^* Covenants Running with the Land. This section cannot in any way affect those rules of law which, before this act, determined what covenants ran with the land. No covenant in regard to real estate will run with the land, unless the covenantor has some interest in the land to which the covenant may be attached, and by the conveyance of which it will pass. However clearly it is expressed by the parties, that a covenant shall run with the land, if it be of such a character that the law does not permit it to be attached to the land, it will not be a covenant running with the land.^* Restrictive Covenants. Nor can this section have any effect upon that large class of covenants known as restrictive covenants, or that class of covenants which inure to the benefit of property owners in a vicinity.^^ 32 Repealed, chap. 547, Laws of 1896. Equitable Life Ins. Co. v. Brennan, 33 The Real Prop. Law, § 223. 148 N. Y. 661, 672 ; Leonard v. The 3* Wilmurt v. McGrane, 16 App. Hotel Majestic Co., 17 Misc. Rep. Div. 412. Cf. Longworth v. Deane, 229; Levy v. Schreyer, 19 id. 227; 15 id. 461, and note to 13 Abb. Turner v. Howard, 10 App. Div. 555 ; N. C. 116. See under next section of Bimpson v. The German- Amer. Imp. this act "Covenants running with the Co., 3 id. 198; and see undernext sec- land." tion of this act " Restrictions on the 35 See examples of such covenants : use of land contained in deeds.'' Short Forms of Deeds and Mortgages. 691 § 223. Short forms of deeds and mortgages The use of the following forms of instruments for the conveyance and mortgage of real property is lawful, but this section does not prevent or invalidate the use of other forms: SCHEDULE A. Deed with Full Covenants. This indenture, made the day of , in the year eighteen hundred and , between of (insert residence) of the first part, and of (insert residence) of the second part. Witnesseth, that the said party of the first part, in con- sideration of dollars lawful money of the United States, paid by the party of the second part, doth hereby grant and release unto the said party of the second part, his heirs and assigns forever (description), together with the appurtenances and all the estate and rights of the party of the first part in and to said premises. To have and to hold the above granted premises unto the said party of the second part, his heirs and assigns forever. And the said party of the first part doth cove- nant with said party of the second part as follows : First. That the party of the first part is seized of said premises in fee simple, and has good right to convey the same. Second. That the party of the second part shall quietly enjoy the said premises. Third. That the said premises are free from encum- brances. Fourth. That the party of the first part will execute or procure any further necessary assurance of the title to said premises. Fifth. That the party of the first part will forever war- rant the title to said premises. In witness whereof, the said party of the first part hath hereunto set his hand and seal the day and year first above written. In presence of: 692 Short Forms of Deeds and Mortgages. SCHEDULE B. Executor's Deed. This indenture, made the day of , eighteen hundred and between as executor of the last will and testament of , late of , deceased, of the first part, and , of the second part, witnesseth: That the said party of the first part, by virtue of the power and authority to him given in and by the said last will and testament, and in consideration of dollars, lawful money of the United States, paid by the said party of the second part, doth hereby grant and release unto the said party of the second part, his heirs and assigns forever (description) together with the appur- tenances, and also all the estate which the said testator had at the time of his decease in said premises, and also the estate therein, which the said party of the first part has or has power to dispose of, whether individually, or by virtue of said will or otherwise. To have and to hold the above granted premises unto the said party of the second part, his heirs and assigns forever. And the said party of the first part covenants with said party of the second part that the party of the first part has not done or suffered anything whereby the said premises have been encumbered in any way whatever. In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. In presence of: SCHEDULE C. Mortgage. This indenture, made the day of in the year eighteen hundred and , between , of , party of the first part, and , of , party of the second part. Whereas, the said is justly indebted to the said party of the second part in the sum of dollars, lawful money of the United States, secured to be Short Forms of Deeds and Mortgages. 693 paid by his certain bond or obligation, bearing even date herewith, conditioned for the payment of the said sum of dollars, on the day of , eighteen hundred and , and the interest thereon, to be computed from at the rate of per centum per annum, and to be paid It being thereby expressly agreed that the whole of the said principal sum shall become due after default in the payment of any installment of principal, interest, taxes or assessments, as hereinafter provided. Now, this indenture witnesseth, that the said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, and also for and in consideration of one dollar, paid by the said party of the second part, the receipt whereof is hereby acknowl- edged, doth hereby grant and release unto the said party of the second part, and to his heirs (or successors) and assigns forever (description), together with the appurte- nances, and all the estate and rights of the party of the first part in and to said premises. To have and hold the above granted premises unto the said party of the second part, his heirs and assigns forever. Provided, always, that if the said party of the first part, his heirs, executors or administrators, shall pay unto the said party of the second part, his executors, administrators or assigns, the said sum of money mentioned in the con- dition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, that then these presents, and the estate hereby granted, shall cease, determine and be void. And the said party of the first part covenants with the party of the second part as follows : 1. That the said party of the first part will pay the indebtedness as hereinbefore provided, and if default be made in the payment of any part thereof, the party of the second part shall have power to sell the premises therein described according to law. 2. That the said party of the first part will keep the buildings on the said premises insured against loss by fire for the benefit of the mortgagee. 3. And it is hereby expressly agreed that the whole of said principal sum shall become due at the option of the 694 Short Forms of Deeds and Mortgages. said party of the second part after default in the pay- ment of any installment of principal or of interest for days, or after default in the payment of any tax or assessment for days after notice and demand. In witness whereof, the said party of the first part hath hereunto set his hand and seal, the day and year first above written. In the presence of Formerly schedules to chapter 475, section 6, Laws of iSgo.^s Comment. Schedule " C " of this section (223) of " The Real Property Law," was corrected by chapter 278, Laws of 1897, so as to read as it now stands in this edition. It will be observed that notwithstanding a seal is no longer necessary to the grant of an estate of freehold,^^ all the foregoing forms contemplate sealing the instruments, and this is expedient for the reasons stated under a preceding section of this act.^^ Short Forms. If a short form of deed or mortgage set out above is intended to be used, it is important to adopt it totidem verbis, or the benefit of the statutory interpretation may be lost.^* The use of long forms of covenants is now subject to a penalty of five dollars in addition to the regular recording fee.*" Mortgage Containing no Covenants. A mortgage containing no covenant of seisin or warranty has no greater effect than a quit- claim deed, and is not operative on a title subsequently acquired. *i A mortgage without a covenant to repay debt, or a note or a bond, is operative only to the extent of the property conveyed.*^ Equitable Mortgage. An agreement to give a mortgage, if founded on an executed consideration, will be enforced in equity, and is valid as against a sub-mortgagee with notice.** Covenants Running with the Land. As nearly every deed of con- veyance contains covenants of one kind or another, some reference 36 Repealed, chap. 547, Laws of 34 App. Div. 90 ; Rawle, Cov. for Tit. 1896. (Sth ed.) p. 4S4, note 4. 37 § 208, The Real Prop. Law ; -lo § 274, The Real Prop. Law. Leask v. Horton, 39 Misc. Rep. 144. Proctor V. Thompson, 13 Abb. N. C. 340; Marie v. Garrison, id. 210, 296; Weisbrod v. Dembosky, 25 Misc. Rep. 485. *1 Lawyer v. Post, 109 Fed. 512. *2 Andrews v. Mahoney, 112 N. Y. 567- "3 Supra, p. 656. »* Wright V. Weeks, 25 N. Y. 153 ; Odell V. Montross, 68 id. 499; Mentz V. Newwitter, 122 id. 491 ; Cooley v. Lobdell, 153 id. 596. ^ Coe V. Touch, 116 N. Y. 273, 277; Tallman v. Franklin, 14 id. 584; Steinfield v. Wilcox, 26 Misc. Rep. 401 ; Hagedorn v. Lang, 34 App. Div. 117. ®* Chap. 677, Laws of 1892, § 12. ^ Seymour v. Warren, 59 App. Div. 120; Brumm v. Gilbert, 27 Misc. Rep. 421 ; affd., 50 App. Div. 430 ; Becker v. Krank, 62 App. Div. 314; Union Na- tional Bank v. Leary, yy id. 332; Barkley v. Forbes, 118 N. Y. 580; Gates v. Dudgeon, 173 id. 426, 428. Cf. Bradt v. Krank, 164 id. 515, 521 ; Schworin v. Goodrich, 29 Misc. Rep. 717, 722. 88 Edwards v. The Farmers' Fire Ins. Co., 21 Wend. 467; Champlin v. Parish, 11 Paige, 405. Cf. Montauk Association v. Daly, 32 Misc. Rep. 558, 62 App. Div. loi. 714 Statute of Frauds. sign.** But it need not be subscribed by both parties. ^ Auction- eers are the agents of both parties.^ An agent duly authorized may sign for his principal,^ and the authority need not be in writing,* unless the contract is a specialty.^ On this principle may rest partnership dealings in realty.'' The writing must be delivered to be effective.'' Statute of Frauds, how Construed. In this connection it should be remembered that a court of equity will not permit the Statute of Frauds to be used as an instrument of fraud.* Effect of Recording. The effect of recording an executory con- tract for the sale of land, is not to make it operative as notice.* Section 207, Supra. The commentary under this section is illus- trated by that under section 207 of this act.^° Pleading. The Statute of Frauds must ordinarily be pleaded to be availed of.*^ ^ Haydock v. Stow, 40 N. Y. 363 ; De Beerski v. Paige, 36 id. 537; Laughran v. Smith, 75 id. 205. 1 McCrea v. Purmont, 16 Wend. 460; Nat. Fire Ins. Co. v. Loomis, II Paige, 431. 2 Hagedorn v. Lang, 34 App. Div. 117; chap. 376, Laws of 1896, § 50; Trustees Baptist Church v. Bigelow, 16 Wend. 28. 3 Haydock v. Stow, 40 N. Y. 363, 370; Dykers v. Townsend 24 id. 57; Hyatt V. Clark, 118 id. 563. * Moody V. Smith, 70 N. Y. 598; Newton v. Bronson, 13 id. 587; Wor- rall V. Munn, s id. 229, 243; Apple- baum V. Galewski, 34 Misc. Rep. 281. Cf. Griffin v. Baust, 26 App. Div. 5S3- 5 Briggs V. Partridge, 64 N. Y. 357, 363. Cf. Kernochan v. Wilkins, 3 App. Div. 596, where specialty was made by trustees in their individual names. ^Traphagen v. Burt, 67 N. Y. 30; Babcock v. Read, 99 id. 609; HoUis- ter v. Siraonson, 36 App. Div. 63; Bailey v. Weed, id. 611; supra, pp. 33S, 361. ^ Montauk Association v. Daly, 62 App. Div. loi. 8 Wood V. Rabe, 96 N. Y. 414; Noble V. McGurk, 16 Misc. Rep. 461 ; Mackall v. Olcott, 93 App. Div. 282, 290; Miller v. Ball, 64 N. Y. 286; Canda v. Totten, 157 id. 281 ; Wood v. Mulock, 48 N. Y. Super. Ct. 70, 80; Bennett v. Abrams, 41 Barb. 619, 624; § 234, Real Prop. Law. Cf. 2 White & Tudor, Lead. Cas. in Eq. 508, note; et vide supra, p. 659. 9 Vide infra under § 244, The Real Prop. Law. ^^ Supra, p. 651 seq. 11 Vide supra under § 207. Effect of Adverse Possession on Grants. 715 § 225. Effect of grant or mortgage of real property adversely possessed. — A grant of real . property is absolutely void, if at the time of the delivery thereof, such property is in the actual possession of a person claiming under a title adverse to that of the grantor; but such possession does not prevent the mortgaging of such property, and such mortgage, if duly recorded, binds the property from the time the possession thereof is recovered by the mortgagor or his representatives, and has prefei^ence over any judg- ment or other instrument, subsequent to the recording thereof; and if there are two or more such mortgages, they severally have preference according to the time of recording thereof, respectively. Formerly i Revised Statutes, 739, sections 147, 148: § 147. Every grant of lands shall be absolutely void, if at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.12 § 148. But every person having a just title to lands, of which there shall be an adverse possession, may execute a mortgage on such lands ; and such mortgage, if duly recorded, shall bind the lands from the time the possession thereof shall be recovered, by the mortgagor or his representatives. And every such mortgage shall have preference over any judgment or other in- strument, subsequent to the recording thereof; and if there be two or more such mortgages, they shall severally have preference according to the time of recording the same respectively. i^ Origin of this Enactment. The origin of this section is to be found in ancient statutes. It is professedly taken from the revision of 1813," wrhich in turn revised and consolidated the great and earlier revision of the English statutes in force in New York, prior to in- dependence.'^ By the common law, a conveyance to a third person of lands held adversely at the time was void as an act of mainte- nance.'" The original statute (32 Hen. VIII, chap. 9) prohibited the sale of any right or title to hereditaments, unless the seller, or his ancestor, or those by whom he claimed, had been in possession of the same, etc., etc., for one year next before the sale. The 12 Repealed, chap. 547, Laws of is 2 Greenl. 38; i K. & R. 343; 2 1896. J. & V. 208; supra, pp. 63, 83, 106, 13 Repealed, chap. 547, Laws of 652. 1896. 16 Co. Litt. 214a ; Plowden, 88 ; 14 Revisers' note to i R. S. 739, Crary v. Goodman, 22 N. Y. 170, 176. « 147; 1 R. L. 173. 716 Effect of Adverse Possession on Grants. Revised Statutes omitted the exception in regard to one year's possession. ^^ Conveyance of Lands Adversely Held Void, when. A conveyance of lands adversely held is void as against the possessor, even though the title under which the possessor holds m?y be bad.^^ But in respect to the rest of the world, such a conveyance is prima facie operative and passes title from grantor to grantee. ^^ This Section for the Benefit of Claimants. The statute declaring the deed void is for the benefit of the claimant, and he may renounce the benefit of it.^o Is this Section Applicable to Conveyances by Executor under Power? Whether this section is applicable to a conveyance by an executor acting under a power of sale given by a will, where the property is held adversely, is in doubt. ^'^ Section does not Apply to Assignees in Bankruptcy. This provision does not apply to a deed from an assignee in bankruptcy, made in pursuance of an order of the bankruptcy court.^^ Section does not Apply to Disputed Boundaries. This statute does not invalidate a grant where grantor is possessed of the greater part of the lands conveyed, but by reason of a disputed boundary is kept out of part of the land thus conveyed,^^ or out of appurte- nances thereto.^ 1' Revisers' note to i R. S. 739, 20 Keneda v. Gardner, 4 Hill, 469; § 147; Lalor, Real Prop, in N. Y. Cameron v. Irvin, 5 id. 272, 279. 253. ^1 Bullard v. Bicknell, 26 App. Div. 18 Jackson v. Todd, 2 Caines, 183; 319. Roseboom v. Van Vechten, 5 Den. 22 Coleman v. Manhattan Beach 414; Livingston v. Proseus, 2 Hill, Imp. Co., 94 N. Y. 229; Knapp v. 526; Poor V. Horton, 15 Barb. 485; Burton, 7 N. Y. Civ. Proc. Rep. 448. Howard v. Howard, 17 id. 663 ; Jack- Cf. Christie v. Gage, 71 N. Y. 189. son V. Brinkerhoff, 3 Johns. Cas. loi ; ^3 Northport R. E. & I. Co. v. Hen- Towle V. Remsen, 70 N. Y. 303; drickson, 139 N. Y. 440; Danziger v. Lambert v. Huber, 22 Misc. Rep. 462; Boyd, 120 id. 628, and cases there Dever v. Hagerty, 169 N. Y. 481 ; cited ; Thompson v. Burhans, 79 id. Pearce v. Moore, 114 id. 256; Clark 93; Code Civ. Proc, § 370. Cf. Hallas V. Durland, 35 App. Div. 312, 320; v. Bell, 53 Barb. 247; Archbald v. Merritt v. Smith, 27 Misc. Rep. 366. N. Y. Cent. R. R. Co., i App. Div. Cf. Arents v. Long Island R. R. Co., 251. 156 N. Y. I. 24 Corning v. Troy Iron & Nail Fac- 19 Poor V. Horton, 15 Barb. 485; tory, 40 N. Y. 191, 39 Barb. 311; Livingston v. Proseus, 2 Hill, 526; Voight v. Meyer, 42 App. Div. 350. Hamilton v. Wright, 37 N. Y. 502; Shattuck V. Lamb, 65 id. 499. Effect of Adverse Possession on Grants. 717 Section does not Apply to Widow's Title to Dower. This section does not apply to assignments of widow's title to dower before admeas- urement, although she is out of possession and the heir holds adversely to her.^^ Vendees. Nor does this section apply to vendees in possession under contract of purchase.^^ Actual Possession under Adverse Title. To make the possession of land adverse, so as to avoid a deed thereof under this statute against champerty, such possession must be under claim of some specific title, or else under some judgment, decree or executed process of some court.^^ Title Adverse to Grantor. In order to avoid a conveyance under this section, the title of the actual possessor, if bona fide, may be derivative from a mere occupant or a claimant,^* provided it be hostile in its inception and not subservient to a higher title,^^ and be a written instrument in due form.^** Actual Possession Requisite. To avoid a deed for champerty actual, not constructive, adverse possession in another is required.*^ The 25 Tompkins v. Fonda, 4 Paige 448. 26 Titcomb v. Fonda, J. & G. R. R. Co., 38 Misc. Rep. 630. 27 Code Civ. Proc, § 370, and see tit. I of chap. 4, Code Civ. Proc. gen- erally; Crary v. Goodman, 22 N. Y. 170; Stevens v. Hauser, 39 id. 302; Higinbottom v. Stoddard, 72 id. 94; Christie v. Gage, 71 id. 189, 192; In Matter of Dept. of Parks, 73 id. 560; Danziger v. Boyd, 120 id. 628 ; Kneller v. Lang, 137 id. 589; Arents v. Long Island R. R. Co., 156 id. i ; Moody v. Moody, 16 Hun, 189; Fish v. Fish, 39 Barb. 513; Hallis v. Bell, 53 id. 247; Nash V. Kemp, 12 Hun, 592; Fort- mann v. Wheeler, 84 id. 278; Jones V. Wright, 8s id. 35; Church v. Schoonmaker, 115 N. Y. 57°, 573; American Bank Note Co. v. N. Y. El. R R. Co., 129 id. 252, 263; Finn v. Lally, I App. Div. 411, 415; Biglow v. Biglow, 39 id. 103; Willey v. Green- field, 64 id. 220; Knapp v. Burton, 7 N. Y. Civ. Proc. Rep. 448. Cf. Broiestedt v. South Side R. R. Co. of L. I., ss N. Y. 220. 28 § 369, Code Civ. Proc. ; Jackson v. Elston, 12 Johns. 452; Jackson v. Foster, id. 488; Bradstreet v. Clarke, 12 Wend. 602, 674; Briggs v. Prosser, 14 id. 227; Jackson v. Woodruflf, i Cow. 276, 286; Clapp V. Bromagham, 9 id. 530; Livingston v. The Peru Iron Co., 9 Wend. 511; Vrooman v. Shephard, 14 Barb. 441 ; City of La Crosse v. Cameron, 40 Fed. 264; Farrar v. Bernheim 74 id. 435. Cf. Bissing v. Smith, 85 Hun, 564. 29 Jackson v. Brainard, 5 Cow. 74; Jackson v. Hill, 5 Wend. 532 ; Church V. Wright, 4 App. Div. 312; Church v. Shultes, id. 378. 39 Arents v. Long Island R. R. Co., IS6 N. Y. I, 7. 31 Dawley v. Brown, 79 N. Y. 390; Archibald v. N. Y. C. & H. R. R. R. Co., IS7 id. 574; Clark v. Davis, 28 Abb N. C. 135, 137. 718 Effect of Adverse Possession on Grants. « presumption is that possession is subordinate to a legal title,^^ and a single statement by a possessor, that he claims no title, fastens a character upon his possession which makes it unavailable for the establishment of a right by adverse possession.^^ Adverse posses- sion cannot be established under a tax lease.^* Conveyance by Reversioners or Kemaindermen. Where tenant for life conveys a fee, the possession thereunder is not adverse during the life of such life tenant, and a conveyance by reversioner or remain- derman is not void under this section.^ Section does not Apply to Conveyances from the State. The objection, that a conveyance is void because the grantor is out of possession, does not apply to a patent or deed of land from The People of the State.»8 Section does not Apply to Court's Officers, etc. This section has no application when the conveyance is pursuant to an order of a court of competent jurisdiction.^^ Exception Tolerating Mortgage of Lands Adversely Held by Claimant. The exception allowing a claimant to lands held adversely to mort- gage them was a compromise with the old law.^^ It was introduced in the Revised Statutes^^ by the revisers,*" and permits a mortgage in a case where a deed would be invalid." Section does not Apply to Reconveyances by Reason of Defects in Former Deeds. A conveyance by a grantor to a grantee, both out of possession, given to remedy a defect because of failure to express 32 De Lancey v. Piepgras, 138 N. Y. ^^ Knapp v. Burton, 7 N. Y. Civ. 26; Miller v. Warren, 94 App. Div. Proc. Rep. 448; Smith v. Scholtz, 68 192. N. Y. 41, S3; Christie v. Gage, 71 id. 33 De Lancey v. Hawkins, 23 App. 189 ; De Garmo v. Phelps, 176 id. 455. Div. 8. Cf. Eisemann v. Lapp, 38 Misc. Rep. 3* Sanders v. Riedinger, 19 Misc. 14, 17. Rep. 289 ; s. c, 30 App. Div. 277 ; 38 i r l 172. Greenleaf Case, 141 N. Y. 395, 399 ; 39 j r s. 739, § 148 ; § 225, The Archibald v. N. Y. C. & H. R. R. R. Real Prop. Law; Penal Code, §§ 130, Co., IS7 id. 574; Beasel v. Gray, 62 id. 131. 632 ; Bedell v. Shaw, 59 id. 46 ; Sands *•* Note of Revisers to 1 R. S. 739, V. Hughes, 53 id. 287, 294. § 148. 36 Christie v. Gage, 71 N. Y. 189 ; *i Penal Code, § ,131 ; Ten Eyck v. Clarke v. Hughes, 13 Barb. 147; Craig, 62 N. Y. 406, and vide brief Clute v. N. Y. C. & H. R. R. R. Co., at p. 411; Towle v. Remsen, 70 id. 120 N. Y. 267, 273, 303, 318. Cf. Marden v. Dorthy, 160 36 Jackson v. Gumaer, 2 Cow. 552; id. 39. Candee v. Hayward, 37 N. Y. 653, 656; Brady v. Begun, 36 Barb. 533. Effect of Adverse Possession on Grants. 719 9 a consideration in a former deed executed by the grantor, and to fortify the title of the possessor of the premises, or a title derived from him, is valid for that purpose, and to estop the grantor from setting up the defect.^^ Remedy when Conveyance Void. When a conveyance is void under this section, grantee may still sue in grantor's name, by express provision of the Code of Civil Procedure, to recover possession of the property.*^ Defense of Statute Must be Pleaded. When plaintiflf in ejectment claims under a deed, void under this section, the defendant must plead the invalidity in order to make the defense available.** *2 Fryer v. Rockefeller, 63 N. Y. N. Y. 481 ; Ten Eyck v. Witbeck, 55 268 ; Lambert v. Huber, 22 Misc. Rep. App. Div. 165, 167. 462. «Ten Eyck v. Witbeck, 55 App. *3 § 1501, Code Civ. Proc. ; Dever v. Div. 165. Hagerty, 43 App. Div. 354 ; revd., 169 720 Fraudulent Conveyances Void. § 226. Conveyances with intent to defraud purchasers and encumbrancers void — A conveyance of an estate or inter- est in real property, or the rents and profits thereof, and every charge thereon, made or created with intent to defraud prior or subsequent purchasers or encumbrancers, for a valuable consideration, of the same real property, rents or profits, is void as against such purchasers and encumbrancers. Such a conveyance or charge shall not be deemed fraudulent in favor of a subsequent purchaser or encumbrancer, who, at the time of his purchase or encumbrance, has actual or legal notice thereof, unless it appears that the grantee in the conveyance, or the person to be benefited by the charge, was privy to the fraud intended. Formerly 2 Revised Statutes, 134, sections I, 2: Section i. Every conveyance of any estate or interest in lands, or the rents and profits of lands, and every charge upon lands, or upon the rents and profits thereof, made or created, with the intent to defraud prior or subsequent purchasers for a valuable consideration, of the same lands, rents or profits, as against such purchasers, shall be void.^ § 2. No such conveyance or charge, shall be deemed fraudulent, in favor of a subsequent purchaser, who shall have actual or legal notice thereof, at the time of his purchase, unless it shall appear that the grantee in such con- veyance, or person to be benefitted** by such charge, was privy to the fraud intended.*^ Origin of this Enactment. These sections of the Revised Statutes were taken from an act of 18 13,** which in turn was derived from an act of 1787, reported by Messrs. Jones & Varick, and contained in their Revision,*^ purporting to re-enact in the State of New York those English statutes in force in the province of New York, prior to Independence.^" The act of 1787^^ was taken from the English statute against fraudulent conveyances, 27 Elizabeth, chap- ter 4, section i (made perpetual by 30 Eliz., chap. 18). Prior to Independence, the act 27 Elizabeth, chapter 4, was, therefore, in force in New York, although not expressly re-enacted in the province.^^ 45 Repealed, chap. 547, Laws of ** I R. L. 75 ; note of Revisers to i8g6. 2 R. S. 134, § I. 46 " Benefitted." So in original au- «2 J. & V. 88, § 3, "An act for the thorized edition of the Revised Prevention of Frauds." Statutes. ^0 Supra, pp. 63, 83, 106, 151, 652. « Repealed, chap. 547- Laws of 61 2 J. & V. 88, § 3- 1896. ®^ 4 Kent, Comm. 462. Fraudulent Conveyances Void. 721 The history of the New York statutes against fraudulent convey- ances prior to the above-mentioned year 1787 is briefly told: The " Duke's Lawes " of 1664 contained several general provi- sions.^^ In 1683 "an act to prevent frauds in conveyancing of lands " was enacted, but it refers only to the registration of deeds.^* In 1 771, conveyance of lands, in pursuance of any lottery scheme, was made void.^^ In 1775 a more extended act was passed, regu- lating bills of sale only.^^ With these exceptions, the law of New York, prior to 1787, in so far as it concerned fraudulent convey- ances, stood wholly on the statutes of Elizabeth.*^ Application of the Statute 27 Elizabeth. The object of the statute ■27 Elizabeth being to give full protection to subsequent purchasers against prior voluntary conveyances, it was decided in England that, in consequence, a prior voluntary conveyance was void as against a subsequent purchaser or mortgagee (from or of the vol- untary grantor), whether with or withotit notice, but not from or of his heir or devisee; and even after a bill filed to enforce such prior conveyance, if not actually on valuable consideration, al- though such conveyance might be bona Me and on good considera- tion; * * * j(- ^jg void on the ground that the statute in every such case inferred fraud.^^ The Statutes of Elizabeth. The statute 27 Elizabeth, chapter 4, was not at variance with the common law.°^ It protected subsequent purchasers. The statute 13 Elizabeth, now embodied in the next section of this act,^" governed creditors and their actions.*^ The statute 2y Elizabeth, chapter 4, has received a thorough discussion in England,*'^ and a comparatively slender one in this State, owing to the local necessity of recording all conveyances, and their con- structive notice when recorded. 2 Revised Statutes, 134, Section 2. The portion of section 226 of The Real Property Law which was formerly embodied in 2 Revised 53 Tit. " Conveyances, Deeds and 59 May, Fr. Conv. 3. Cf. Rob. Writings.'' Vol. i, p. 30, State Rev. Conv. pp. 13, 14. Col. Laws, ed. of 1897. ^^ § 227, The Real Prop. Law. 5* Vol. I, p. 141, State Rev. Col. 61 Roberts v. Anderson, 3 Johns. Laws. Ch. 731. 55 Van Schaack, 676. 62 yi^ig Roberts on Conveyances 56 Chap. 72, Laws of 1775. under this statute, and remarks, 57 4 Kent, Comm. 462, 463. supra, p. 494, under § 124, The Real 58 Smith, Real & Pers. Prop. 683. Prop. Law. 46 722 Fraudulent Conveyances Void. Statutes, 134, section 2^ was intended to settle negatively the ques- tion whether a subsequent purchaser with notice could set aside a prior voluntary conveyance, as the affirmative rule then prevailing in England was deemed illogical and improper.** Such convey- ances, like other assignments, were always regarded as valid be- tween the immediate parties, so far as executed; ^ but courts would not lend their aid to enforce them, even inter partes, when wholly executory.'^'' Conveyance to Defraud Intending Wife and Marriage Settlement. A con- veyance to defraud intending wife is void, and after marriage she may bring an action to set it aside.'^'^ Marriage is itself the highest consideration known to the law, and a settlement on an intending wife will often be supported, if the inducement of the marriage, as against subsequent purchasers or prior creditors.*^ Connection of this Section. This section of this act must be read in connection with sections 3-28 and 229 of the same act. 83 Supra, p. 720. 86 Mosely v. Mosely, 15 N. Y. 334. 84 Revisers' note to 2 R. S. 134, § 2 ; 87 Youngs v. Carter, i Abb. N. C. Verplanck v. Sterry, 12 Johns. 536; 136; affd., 10 Hun, 194. Cathcart v. Robinson, 5 Pet. (U. S.J 88 Verplank v. Sterry, 12 Johns. 264; Roberts v. Anderson, 3 Johns. 536; Whelan v. Whelan, 3 Cow. 537; Ch. 371 ; 4 Kent, Comm. 463, seg. Prewit v. Wilson, 103 U. S. 22 ; Wood 85 Ames V. Blunt, S Paige, 13 ; Jack- v. Jackson, 8 Wend. 9 ; 4 Kent, son V. Cadwell, i Cow. 622; Jackson Comm. 464; Carr v. Breese, 81 N. Y. V. Garnsey, 16 Johns. 189 ; Mosely v. 584 ; Neuberger v. Kein, 134 id. 35 ; Mosely, 15 N. Y. 334; Gibson v. Nat. Kramer v. Kramer, 90 App. Div. 176, Park Bank, 98 id. 87, 98 ; Becknell v. 180. Cf. Flory v. Houck, 40 Atl. 482. Lancaster Ins. Co., i T. & C. 215 ; affd., 58 N. Y. 677. Fraudulent Conveyances Void. 723 § 227. Conveyances with intent to defraud creditors void — A conveyance or assignment in writing or otherwise, of an estate, interest, or existing trust in real property, or the rents or profits issuing therefrom, or a charge on real property, or on the rents or profits thereof, made with the intent to hinder, delay or defraud creditors, or other persons, of their lawful suits, damages, forfeitures, debts or demands, or a bond or other evidence of debt given, suit commenced or decree or judgment suffered, with the like intent, is void as against every person so hindered, delayed or defrauded. Formerly 2 Revised Statutes, 137, section i : § I. Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents or profits thereof, made with the intent to hinder, delay or defraud creditors or other persons, of their lawful suits, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent, as against the persons so hindered, delayed or defrauded, shall be void.89 Origin of this Enactment. This section of The Real Property Law and its prototype in the Revised Statutes are derived from the 2d section of the " Act for the prevention of frauds," ™ which, in turn, was taken by Messrs. Jones & Varick, the revisers of 1786-87, from the English act, 13 Elizabeth, chapter 5, made perpetual by the act 29 Elizabeth, chapter S.''^ These English acts were in force in New York prior to independence of the Crown, and consequently were adopted as part of the law of the State by the first Constitution.''* Section 227, Supra. This section of The Real Property Law is to be read in connection with section 230 thereof, which is a saving clause embodying section 6 of " The act for the prevention of Frauds." ''^ Rights and Remedies under this Section. The rights and remedies under this section can best be discovered in the voluminous treat- 69 Repealed, chap. 547, Laws of '^i Vide remarks, supra, under § 226, 1896. The Real Prop. Law; Wilder v. ™ 2 J. & V. 88; I K. & R. 75; I Winne, 6 Cow. 284, 287. R. L. 75 ; note of Revisers to 2 R. S. ''2 4 Kent, Comm. 462 ; 2 id. 440. 137, § I- '3 Supra. 724 Fraudulent Conveyances Void. ises devoted to creditors' actions and bills/* and to fraudulent conveyances.''^ It is impossible even to outline the authorities on so extensive a subject under a single section of The Real Property Law. It must suffice to point out the leading propositions. Conveyances with Intent to Defraud, How Far Void. Under this stat- ute conveyances are void as against creditors (though they may be good in other respects''®), when made with an express intent to defraud them.'''' Intent to Defraud a Question of Fact. The question whether a con- veyance is made with intent to defraud, etc., is a question of fact.''* Voluntary Conveyances. The mere fact that a conveyance is volun- tary is not sufficient to avoid it as to existing creditors ;''* and yet the fact that a conveyance by an insolvent is voluntary, or with- out consideration, may be controlling as to fraud.*" So if it is upon a partly fictitious consideration,*' or one grossly inadequate,*^ or if upon a long or indeterminate credit.*^ But a pre-existing debt affords a sufficient consideration.** The adequacy of the considera- tion is only material as evidence of fraudulent intent.*^ A volun- tary conveyance is not per se fraudulent.*^ ''*4 Cruise, Dig., tit. 32, chap. 28. 52 N. Y. 274; Young v. Heermans, ■^s Rob. Conv. ; Bump, Fr. Conv. ; 66 id. 374; Fox v. Moyer, 54 id. 125; Wait, Fr. Conv. ; Bish. Insolv. Jacobs v. Morrison, 136 id. loi ; Hyde Assign. V. Wolf, 31 App. Div. 125. ''S Bicknell v. Lancaster, etc., Ins. *i Lee v. Hunter, 1 Paige, 519. Co., I T. & C. 215 ; affd., 58 N. Y. 677. 82 Van Wyck v. Baker, 16 Hun, TT Cruise, Dig., tit. 32, chap. 28; 168; Donohue v. Joyce, 46 N. Y. St. vide § 229, The Real Prop. Law. Rep. 373. ■^8 § 229, The Real Prop. Law. *^ Hendricks v. Robinson, 2 Johns. ™Kain v. Larkin, 131 N. Y. 300, Ch. 283; afifd., as Hendricks v. Wal- 307; Guy V. Craighead, 46 App. Div. den, 17 Johns. 438; Browning v. 614. Hart, 6 Barb. 91 ; Starin v. Kelly, 36 80 Vide infra, § 229, The Real Prop. N. Y. Super. Ct. (J. & S.) 366; Evans Law; Erickson v. Quinn, 47 N. Y. v. Sims, 82 Hun, 396; Downing v. 410; Coleman v. Burr, 93 id. 17; Kelly, 49 Barb. 547. Cf. Scheitlin v. Smith V. Reid, 134 id. 568; Wood v. Stone, 43 id. 634. Hunt, 38 Barb. 302; Fuller v. Brown, 84 Murphy v. Briggs, 89 N. Y. 446. 76 Hun, SS7; Royer Wheel Co. v. Cf. Flory v. Houck, 40 Atl. 482. Fielding, 31 id. 274, 279; O'Connell 8^ Dygert v. Remerschnider, 32 N. V. Madden, 26 N. Y. St. Rep. 251; Y. 629; Jaeger v. Kelley, 52 id. 274; Jackson v. Seward, s Cow. 67 ; Reade Dunlap v. Hawkins, 59 id. 342, 345 ; V. Livingston, 3 Johns. Ch. 481; 4 Smith v. Reid, 134 id. 568; Fitzpat- Kent, Comm. 464. Cf. Jackson v. rick v. Fox, 80 App. Div. 345. Peck, 4 Wend. 300 ; Jaeger v. Kelley, 88 Holden v. Burnham, 63 N. Y. 74 ; Fraudulent Conveyances Void. 725 Marriage a SufScient Consideration. Marriage, if the inducing cause of a settlement, is a valid consideration, even as against existing creditors of the settlor,*'^ unless the intending wife is aware at the time that the settlor is insolvent.** But where a post-nuptial settle- ment is pursuant to an oral ante-nuptial agreement it will not prevail as against creditors.*^ Post-Nuptial Settlement. A post-nuptial settlement is presump- tively fraudulent as to creditors."" Outlawed Debt. A debt barred by statute may afiford a sufficient moral obligation to support a conveyance."^ Fraudulent Grantee. A person who with fraudulent intent takes a conveyance even for value is without remedy on the conveyance to recover the consideration,"^ although actual disbursements are in some instances allowed him."^ Subsequent Creditors. The Statute avoids conveyances not only as to existing creditors, but as to subsequent creditors, where the con- veyance was given with a view of continuing in business, creating future debts and defrauding them."* Young V. Heermans, 66 id. 374; Carr V. Breese, 81 id. 584; Billings v. Rus- sell, 101 id. 226; Jackson v. Badger, lOg id. 632; Johnson v. Johnson, 37 N. Y. St. Rep. 524; KaHsh v. Hig- gins, 76 App. Div. 192, 197. *'' Verplank v. Sterry, 12 Johns. 536 ; Whelan v. Whelan, 3 Cow. 537 ; Wood V. Jackson, 8 Wend. 9; Dygert V. Remerschnider, 32 N. Y. 629; Starkey v. Kelly, 50 id. 676; Prewit V. Wilson, 103 U. S. 22. *8Keep V. Keep, 7 Abb. N. C. 240. Cf. Birdsall v. Schwarz, 26 App. Div. 343- 89Whyte V. Denike, 53 App. Div. 320. Cf. Bromley v. Miles, 51 id. 95. 80 Smith V. Reid, 134 N. Y. 568; Adee v. Hallett, 3 App. Div. 308; Allee V. Slane, 26 id. 455 ; Flory v. Houck, 40 Atl. 482; et vide under § 229, The Real Prop. Law. Cf. Kain v. Larkin, 131 N. Y. 300, 307; American Forcite Co. v. Hanna, 31 App. Div. 117; Whyte v. Denike, S3 id. 320; Guy V. Craighead, 46 id. 614. 91 Livermore v. Northrup, 44 N. Y. 107; McConnell v. Barber, 86 Hun, 360. 92 Union Nat. Bank v. Warner, 12 Hun, 306; Burnham v. Brennen, 42 N. Y. Super. Ct. 49; Shand v. Hand- ley, 71 N. Y. 319; Bank of Beloit v. Beale, 34 id. 473; Billings v. Russell, loi id. 226; Manchester v. Tibbetts, 121 id. 219; Davis v. Leopold, 87 id. 620 ; Babcock v. Jones, 62 Hun, 565 ; Central Nat. Bank v. Seligman, 64 id. 6is; s. c, 138 N. Y. 435. Cf. Loos V. Wilkinson, 113 id. 485; Saugerties Bank v. Mack, 35 App. Div. 398. "3 Loos V. Wilkinson, 113 N. Y. 485; Lore V. Dierkes, 16 Abb. N. C. 47. Cf. Burt V. C. Golzian & Co., 102 Fed. 937. "* Savage V. Murphy, 34 N. Y. 508 ; Case V. Phelps, 39 id. 164; Teed v. Valentine, 65 id. 471; Dewey y. 726 Fraudulent Conveyances Void. Creditors' Remedies. While courts of law and courts of equity have concurrent jurisdiction over fraud under this statute,^* in cases where the property cannot be reached by execution, proceed- ing by bill or action is necessary.®^ And such bill cannot ordi- narily^'^ be filed until after the creditor has reduced his claim to judgment and execution is returned unsatisfied in whole or in part.*^ Several creditors standing in the same situation®* may file the bill in their own behalf and in behalf of others similarly situated.^ Moyer, 72 id. 70; Todd v. Nelson, 109 id. 316; Neuberger v. Keim, S3 Hun, 60; Talcott V. Levy, 29 Abb. N. C. 3. Cf. Dygert v. Remerschnider, 32 N. Y. 629; Dunlap v. Hawkins, 59 id. 342; Neuberger v. Keim, 134 id. 35; Ebbitt V. Dunham, 25 Misc. Rep. 232. ^ Bergen v. Snedeker, 79 N. Y. 146; Bockes V. Lansing, 74 id. 437; Lichtenberg v. Herdtfelder, 103 id. 302. *8 Harding v. Elliott, 12 Misc. Rep. 521 ; Mosely v. Mosely, 15 N. Y. 334. ^ Executors, assignees, etc., are en- abled to set aside such conveyances (Chap. 341, Laws of 1858, as amended by chap. 740, Laws of 1894, and chap. 487, Laws of 1889), without being judgment creditors. Harvey v. Mc- Donnell, 113 N. Y. 526; Southard v. Pinckney, s Abb. N. C. 184; § 232, infra, The Real Prop. Law. 98 Prentiss v. Bowden, 145 N. Y. 342; N. T. Bank v. Wetmore, 124 id. 241, 248; Adee v. Bigler, 81 id. 349; Geery v. Geery, 63 id. 252; Me- chanics', etc.. Bank v. Dakin, 51 id. 522; Beardsley Scythe Co. v. Foster, 36 id. 561 ; Estes v. Wilcox, 67 id. 264; Adsit v. Butler, 87 id. 585. Cf. Le Fevre v. Phillips, 81 Hun, 232; Stiefel V. Bertin, 20 Misc. Rep. 194, 19s ; § 2463, Code Civ. Proc. 88 Tabor v. Bunnell, 10 Week. Dig. 551; Reid v. The Evergreens, 21 How. Pr. 39; § 97, Story, Eq. PI. 1 § 448, Code Civ. Proc, White's Bank v. Farthing, loi N. Y. 344; vide, § 232, infra. Fraudulent Conveyances Void as to Heirs, etc. 727 § 228. Conveyances void as to creditors, purchasers and encum- brancers, void as to heirs and assigns A conveyance, charge, instrument or proceeding, declared by this article to be void as against creditors, purchasers or encum- brancers, is equally void as against their heirs, successors, personal representatives or assigns. Formerly 2 Revised Statutes, 137, section 3 : § 3. Every conveyance, charge, instrument or proceeding declared to be void, by the provisions of this Chapter, as against creditors or purchasers, shall be equally void against the heirs, successors, personal representatives or assignees, of such creditors or purchasers.^ Note on Section 228. The Revised Statutes gave the benefit of the statute, directed against fraudulent conveyances, to heirs, success- ors, executors and assigns of purchasers and creditors.^ This enactment was for superabundant caution. In some instances the courts showed a disposition to narrow the effect of the statutes against fraudulent conveyances, so as to limit the remedies to the persons specified in the statute. There was a disposition to give a stronger effect to the statute of 27 Elizabeth in favor of purchasers than to that of 13 Elizabeth in favor of creditors, as purchasers had actually paid money for the estate. This section of the Revised Statutes prevented any disputation and expressly declared that the remedy given to creditors should extend to their heirs and assigns.* The disposition of the Legislature, in modern times, has been to enlarge the scope of all remedial legislation so as to confer a succes- sion to rights of action upon those who are the lawful successors of the persons intended to be relieved. 2 Repealed, chap. 547, Laws of * See Roberts, Fraud Conv. 61, 1896. note a; § 232, infra. 3 See Revisers' note to 2 R. S. 137, S3. 728 Fraudulent Intent a Question of Fact. § 229. Fraudulent intent, question of fact. — The question of fraudulent intent in a case arising under this article, shall be deemed a question of fact and not of law; and a con- veyance or charge shall not be adjudged fraudulent as against creditors, purchasers or encumbrancers, solely on the ground that it was not founded on a valuable consideration. Formerly 2 Revised Statutes, 137, section 4: § 4. The question of fraudulent intent in all cases arising under the pro- visions of this Chapter, shall be deemed a question of fact and not of law ; nor shall any conveyance or charge be adjudged fraudulent as against cred- itors or purchasers, solely on the ground, that it was not founded on a valu- able consideration.^ Older Law. Fraudulent intent was, before the Revised Statutes, sometimes deemed to be a question of law, and sometimes a ques- tion of fact. The original revisers determined to settle the doubt.® The Revised Statutes. Since the Revised Statutes, whether a voluntary conveyance is fraudulent or not, is a question of fact for the jury,'' and the fraud must be proved affirmatively as alleged.* But where the construction of such an instrument is doubtful, the maxim " nt res magis valeat quant pereat " is applied.* Probative Facts. The vendee must participate in the intent to defraud.^" The intent of vendor alone to defraud or delay existing creditors is not sufficient to avoid the conveyance,^^ unless the conveyance is purely voluntary. ^^ 5 Repealed, chap. 547, Laws of Misc. Rep. 278 ; Jaeger v. Kelley, 52 1896. N. Y. 274; Greenough v. Greenough, 6 Revisers' note to 2 R. S. 137, § 4 ; 21 Misc. Rep. 727. Hanford v. Artcher, 4 Hill, 271 ; Bab- 9 Roberts & Co. v. Buckley, 145 N. cock v. Eckler, 24 N. Y. 623, 633; Y. 215. Manchester v. Tibbetts, 121 id. 219, l" Dudley v. Danforth, 61 N. Y. 222. 626; Benedict v. Eldredge, 14 App. ''Babcock v. Eckler, 24 N. Y. 623, Div. 625; Smith v. Post, i Hun, 516; 633 ; Dygert v. Remerschnider, 32 id. Sumner v. Skinner, 80 id. 201 ; Som- 629 ; Fuller v. Brown, 76 Hun, 557 ; mers v. Contentin, 26 App. Div. 241 ; Dunlap V. Hawkins, 59 N. Y. 342, Bogert v. Hess, 50 id. 253. 345; Stanley v. Union Nat. Bank, 115 "Jaeger v. Kelley, 52 N. Y. 274; id. 122, 138; Manchester v. Tibbetts, Bush v. Roberts, 41 id. 278; Jacobs 121 id. 219, 222; Goff V. Eames, 20 v. Morrison, 136 id. loi ; Hyde v. Misc. Rep. 498; Wright v. Seaman, Bloomingdale, 23 Misc. Rep. 728. 32 App. Div. 106. 12 Fuller v. Brown, 76 Hun, 557 ; sParfitt V. Kings Co. Gas Co., 12 Erickson v. Quinn, 47 N. Y. 410; Fraudulent Intent a Question of Fact. 729 Creditors. A creditor is allowed to take property from a failing firm in satisfaction of a demand, even though he know of the in- solvency, unless he participate in the intent to delay, defraud, etc., other creditors." Pcst-Nuptial Settlements. A post-nuptial settlement may be valid as to subsequent creditors of the settlor, unless made secretly or with intent to defraud them." But it will be remembered that ordinarily a voluntary conveyance is presumptively fraudulent as to existing creditors. ^^ Effect of Consideration. Where intent to defraud exists, a good or valuable consideration will not save the conveyance from the condemnation of the statute.^® But a valuable consideration affords prima facie evidence of good faith,^'' though the presumption may be overcome by proof.'® A nominal, although valuable, considera- tion may on the other hand be proof of fraudulent intent. '' But it is not conclusive proof.^" Coleman v. Burr, 93 id. 17, and see cases cited under § 227, supra. 13 Dudley v. Danforth, 61 N. Y. 626; Hine v. Bowe, 114 id. 350; Stanley v. Union Nat. Bank, 115 id. 122; Knower v. Central Nat. Bank, 124 id. 552; Central Nat. Bank v. Seligman, 30 Abb. N. C. 245, 138 N. Y. 435 ; Abegg v. Bishop, 142 id. 286 ; Billings V. Billings, 31 Hun, 65 ; Mc- Naney v. Hall, 86 id. 415; Prewit v. Wilson, 103 U. S. 22; Tompkins v. Hunter, 24 N. Y. Supp. 8; H. B. Claflin Co. v. Arnheim, 87 Hun, 236; Dewey v. Wilson, 4 App. Div. 232; Hoffman v. Susemihl, 15 id. 405 ; Repanno Chemical Co. v. Victor Hardware Co., loi Fed. 948; Howe V. Sommers, 22 App. Div. 417; Shid- lovsky V. Gorman, 51 id. 253. 1* Babcock v. Eckler, 24 N. Y. 623 ; Neuberger v. Keim, 134 id. 33 ; Holden v. Burnham, 63 id. 74; Tal- cott V. Levy, 29 Abb. N. C. 3 ; Schreyer v. Scott, 134 U. S. 405 ; Flory V. Houck, 40 Atl. 482. 15 Smith V. Reid, 134 N. Y. 568; Allee V. Slane, 26 App. Div. 455 ; Wright V. Seaman, 32 id. 106. Cf. Adee v. Hallett, 3 id. 308. 16 Billings V. Russell, loi N. Y. 226. Cf. Adee v. Hallett, 3 App. Div. 308, as to consideration. 1^ Nugent V. Jacobs, 103 N. Y. 125. 18 Taylor v. Hoey, 36 N. Y. Super. Ct. 402. "Mackay v. Gabel, 117 Fed. 873. 20 Fitzpatrick v. Fox, 80 App. Div. 345- 730 Bona Fide Purchasers Protected. § 230. Rights of purchaser or encumbrancer for valuable con- sideration protected. — This article does not in any man- ner affect or impair the title of a purchaser or encum- brancer for a valuable consideration, unless it appears that he had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor. Formerly 2 Revised Statutes, 137, section S : § 5. The provisions of this Chapter shall not be construed, in any man- ner, to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear, that such purchaser had previous notice of the fraudu- lent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.21 Origin of Section 230. 2 Revised Statutes, 137, section 5, was taken from the act of 1787^ by the original revisers ;^ but its sub- stance was contained in the English statutes on which the New York act of 1787 was in turn founded.^* Voluntary Assignee not a Purchaser. An assignee for the benefit of creditors is not a purchaser for a valuable consideration.^^ A bona fide purchaser is one who pays value without notice of the claim or interest of another.^^ Notice. Ordinarily a person who has notice of facts, sufficient to put him on inquiry, is not to be regarded as a purchaser without notice.^^ Burden of Proof. If a purchaser show that he purchased for a valuable consideration, the creditor must then show that the pur- chaser had actual notice of the fraudulent intent specified in the statute.^® A purchaser, or a mortgagee for value, is not chargeable with constructive notice under this statute.^* Such knowledge, 21 Repealed, chap. 547, Laws of ker v. Conner, 93 id. 118; Bush v. 1896. Roberts, in id. 278; Jacobs v. Mor- 222 J. & V. 88; I R. L. 75. rison, 136 id. loi ; Anderson v. 23 Note 2 R. S. 137, § S- Blood, ^52 id. 285. 24 13 Eliz., chap. 5, § 6; 27 id., chap. 28 Starin v. Kelly, 88 N. Y. 418; 4, § 4. Vide, pp. 720, 723, supra, un- Taylor v. Hoey, 36 N. Y. Super. Ct. der §§ 226, 227, The Real Prop. Law. 402. 2B Griflfin V. Marquardt, 17 N. Y. 28. 29 Stearns v. Gage, 79 N. Y. 102 ; 26 Spicer V. Waters, 65 Barb. 227. Murphy v. Briggs, 89 id. 446 ; Parker 27 Williamson v. Brown, 15 N. Y. v. Conner, 93 id. 118. 354; Stearns v. Gage, 79 id. 102; Par- Bona Fide Purchasers Protected. 731 however, need not be established by positive evidence, but may be inferred from circumstances.^" Bona Fide Purchasers. An innocent purchaser for value, without notice, from one who had actual notice of a conveyance in fraud of creditors, is a bona fide purchaser under this statute. ^^ So, a purchaser with notice from one who bought without notice, takes the title of his grantor, and is protected to the same extent. ^^ Fraudulent Grantee. Where grantee has actual notice, or is par- ticeps fraudis, he cannot recover the money paid on the convey- ance,^^ and subsequent improvements are also forfeited where he had actual notice.^* But actual disbursements, such as taxes or interest on mortgages, are sometimes allowed such a grantee,^ especially when his guilt is constructive only.*^ 30 Ross V. Caywood, i6 App. Div. ^^ Griffith v. Griffith, g Paige, 315. 591. ^ Vide supra, p. 725, cases cited un- 31 Jackson v. Walsh, 14 Johns. 407 ; der § 227, The Real Prop. Law. Noyes v. Burton, 29 Barb. 631 ; ^4 Shand v. Handley, 71 N. Y. 319. Frazer v. Western, i Barb. Ch. 220; 35 Lqos v. Wilkinson, 113 N. Y. 485. affd., 3 Den. 610, How. Cas. 448; et 36 Lore v. Dierkes, 16 Abb. N. C. 47. vide infra, p. 761. 732 When Power of Revocation Void. § 231. Conveyances with power to revoke, determine or alter — A conveyance of or charge on an estate or interest in real property, containing a provision for the revocation, determination or alteration of the estate or interest, or any part thereof, at the will of the grantor, is void, as against subsequent purchasers and encumbrancers, from the grantor, for a valuable consideration, of any estate or interest so liable to be revoked or determined, although the same be not expressly revoked, determined or altered by the grantor, by virtue of the power reserved or expressed in the prior conveyance or charge. Where a power to revoke a conveyance of real property or the rents and profits thereof, and to reconvey the same, is given to any person, other than the grantor in such conveyance, and such person thereafter conveys the same real property, rents or profits to a purchaser or encum- brancer for a valuable consideration, such subsequent conveyance is valid, in the same manner and to the same extent as if the power of revocation were recited therein, and the intent to revoke the former conveyance expressly declared. If a conveyance to a purchaser or encum- brancer, under this section, be made before the person making it is entitled to execute his power of revocation, it is nevertheless valid from the time the power of revoca- tion actually vests in such person, in the same manner, and to the same extent, as if then made. Formerly 2 Revised Statutes, 134, sections 3, 4 and 5 : § 3. Every conveyance or charge of, or upon, any estate or interest in lands, containing any provision for the revocation, determination or altera- tion, of such estate or interest, or any part thereof, at the vjfill of the grantor, .shall be void, as against subsequent purchasers from such grantor for a valuable consideration, of any estate or interest so liable to be revoked or determined, although the same be not expressly revoked, determined or altered, by such grantor, by virtue of the power reserved or expressed in such prior conveyance or charge.^'' § 4. Where a power to revoke a conveyance of any lands, or the rents and profits thereof, and to reconvey the same, shall be given to any person, other than the grantor in such conveyance, and such person shall thereafter convey the same lands, rents or profits, to a purchaser for a valuable con- sideration, such subsequent conveyance shall be valid, in the same manner and to the same extent, as if the power of revocation were recited therein, and the intent to revoke the former conveyance expressly declared.^^ 3T Repealed, chap. 547, Laws of 3* Repealed, chap. 547, Laws of 1896. 1896. When Power of Revocation Void. 733 § S- If a conveyance to a purchaser, under either of the two last preced- ing sections, shall be made, before the person making the same, shall be entitled to execute his power of revocation, it shall nevertheless be valid, from the time the power of revocation shall actually vest in such person, in the same manner and to the same extent, as if then made.3* Origin of Section 231, Supra. That provision formerly contained in 2 Revised Statutes, 134, section 3, concerning conveyances v^fith power of revocation, was originally taken from the act of 1787,*" which, in turn, was derived from the statute 27 Elizabeth, chapter 4, section 5.*' The provisions contained in 2 Revised Statutes, 134, sections 4 and 5, were introduced by the original revisers them- selves, because they deemed them to be within the equity of the statute against fraudulent conveyances.*^ It would seem that in this Revision, such latter provisions might well have been included in the Article on Powers. They are apt to escape the student of that subject otherwise. Powers of Revocation. A power of revocation reserved in a settle- ment in faVor of grantor was first made fraudulent as to subsequent purchasers from such grantor by 27 Eliz., chapter 4, section s,** and in the absence of a system of recording conveyances, was a salutary provision. But a power of revocation, reserved to a settlor in a marriage settlement, or in a family settlement, may be a very proper reservation and in fraud of no one.** The other portions of the foregoing section of this statute relate to the execution of certain powers of appointment and revocation by grantees of the power. They have been sufficiently referred to in the notes and comments on the Article on Powers,*' to which they more properly belong. This section would appear to refer to beneficial and not to trust powers, which are controlled by other principles than those stated in these rules. Execution of Powers. The latter portions of this section are to be read in connection with the cognate sections of the Article on Powers.*^ As a rule a quitclaim deed, without covenants of seisin 39 Repealed, chap. 547, Laws of ** Sutra, pp. 459, 494, 497, under 1896. §§ no, 124, The Real Prop. Law; «>2 J. & V. 88; I R. L. 75, § 5. Kain v. Larkin, 131 N. Y. 300. *i Vide supra, pp. 494, 497, under *5 Art. IV, The Real Prop. Law, §§ 124, 125, The Real Prop. Law. pp. 457-557. *2 Revisers' notes to 2 R. S. 134. *6 §§ 155, 157, 160, 161, supra. 43 I Sand. Uses, 171, 172. 734 When Power of Revocation Void. and warrant}', is not operative by estoppel if the grantor afterward acquire the property.*^ But if a grantee of a power execute a deed before the time specified in the grant of the power, it operates by virtue of this section the moment the time for execution arrives, and irrespective of any covenants. Trusts for the Benefit of the Settlor. Trusts of personal property for the benefit of settlors are still void as to creditors.** By analogy this statute is extended to trusts of real property for the settlor's own benefit, although on quite another principle, pointed out by Gray, J., such trusts of lands would seem to be able to be seques- trated by the settlor's creditors.** In this connection it may be well to point out that there is a considerable difference of opinion upon the point, whether equity has, independently of statute, power to reach equitable assets for the benefit of judgment creditors at law. Some authorities affirm the power; others deny it.^* ■*'^ Sparrow v. Kingman, i N. Y. for other cases, and see Fowler's 256; Jackson v. Littel, 56 id. 108; Pers. Prop. Law of N. Y. p. 108. Donovan v. Twist, 85 App. Div. 130. 50 Harper v. Clayton, 35 Law Rep. *^ 2 R. S. 13s, § i; chap. 417, Laws Annot. 211; Dittmar v. Gould, 60 of 1897 (constituting chap. 47, Gen- App. Div. 94, 97; § 1871, Code Civ. eral Laws), §23. Proc. (formerly 2 R. S. 174, §§ 38, 49 Schenck V.Barnes, 156 N. Y. 316; 39); 4 Kent, Comm. 61; Tompkins Townsend v. Bumpus, 29 App. Div. v. Fonda, 4 Paige, 448; Stewart v. 122; Kain v. Larkin, 4 id. 209; revd., McMartin, S Barb. 438, 446; Story, 131 N. Y. 300; et supra, p. 378, note Eq. Juris. §§ 366, 367, 368; Hadden v. 89. Spader, 20 Johns. 554. Disaffirmance of Fraudulent Acts. 735 § 232. Disaffirmance of fraudulent act by executor and others. — An executor, administrator, receiver, assignee or other trustee, may, for the benefit of creditors, or of others in- terested in real property held in trust, disaffirm, treat as void and resist any act done or transfer or agreement made in fraud of the rights of any creditor, including himself, interested in such estate or property; and a person who fraudulently receives, takes, or in any manner interferes with the real property of a deceased person, or an insol- vent corporation, association, partnership, or individual, is liable to such executor, administrator, receiver or other trustee for the same, or the value thereof, and for all damages caused by such act to the trust estate. A creditor of a deceased insolvent debtor, having a claim or demand exceeding one hundred dollars against such deceased, may, for the benefit of creditors or others interested in the property of such deceased, disaffirm, treat as void, and resist any act done or conveyance, transfer or agreement made by such deceased in fraud of the rights of any credi- tor, including himself, and may maintain an action to set aside such act, conveyance, transfer or agreement, without having first obtained a judgment on such claim or demand; but the same, if disputed, may be established on the trial. The judgment in such action may provide for the sale of the premises or property involved, when a conveyance or transfer thereof is set aside, and that the proceeds thereof be brought into court or paid into the proper surrogate's court to be administered according to law. Note on this Section. This section is taken from chapter 314, Laws of 1858, "An act to declare and extend the powers of execu- tors, assignees, receivers and other trustees, and to protect the rights of creditors and others against frauds, and for other pur- poses," as amended by chapter 487, Laws of 1889, and chapter 740, Laws of 1894. Administrators, Executors, etc. Administrators, etc., may now maintain an action to disaffirm or set aside transfers by the per- sons they represent, without liens or judgments first obtained.^^ And such right of action is now vested in such persons primarily .^^ "Southard v. Benner, 72 N. Y. Pinckney, 5 Abb. N. C. 184; Trues- 424; Potts V. Hart, 99 id. 168; Harvey dell v. Bourke, 29 App. Div. 95. V. McDonnell, 113 id. 526; Barton y. 52 McNaney v. Hall, 86 Hun, 415. Hosmer, 24 Hun, 567; Southard v. 736 Disaffirmance of Fraudulent Acts. Creditors May Act if Executors, etc., Refuse. If executors, etc., re- fuse to act, creditors ma)'- do so.^^ Section does not Extend to Next of Kin. This enabling act does not benefit next of kin.^* Effect of this Section. Before the Legislature invested voluntary assignees and insolvents' trustees with power to maintain actions or suits to set aside conveyances of their grantors, they could not maintain such actions or suits, for they stood in the shoes of their assignors, and inter partes such conveyances are good. But under the statutes, including the present section, assignees for creditors now have greater rights than their assignors, and may attack the conveyances of their predecessors in title.^ Such assignees may maintain an action to set aside transfers by assignees, even without proof of fraudulent intent, if such assignment or conveyance con- travenes some statute protecting creditors.^® But not because of the non-filing of a chattel mortgage.^^ Simple Contract Creditors. Simple contract creditors of deceased insolvents may now maintain representative suits to set aside their debtor's transfers in fraud of creditors.** Code of Civil Procedure. Section 786 of the Code of Civil Procedure applies to actions brought under this section.*^ 53 Harvey v. McDonnell, 113 N. Y. 67 Sheldon v. Wickham, 161 N. Y. 526; Natl. Tradesmen's Bank v. Wet- 500. more, 124 id. 241. ^^ § 232, The Real Prop. Law; § 7, 5* Lore V. Dierkes, 16 Abb. N. C. 47. The Pers. Prop. Law, chap. 417, Laws 5S Southard v. Benner, 72 N. Y. of 1897 ; Rosselle v. Klein, 42 App. 424; The Natl. Tradesmen's Bank v. Div. 316. Wetmore, 124 id. 241, 254, 255 ; Matte- 69 Matter of Thoesen & Brother, son V. Palser, 173 id. 404. 62 App. Div. 87. 66 Wile V. Cauffman, 39 App. Div. 206. When Remaindermen May Pay Interest. 737 § 233. When remainderman may pay interest owed by life tenant — Whenever real property held by any person for life is encumbered by mortgage or other lien, the interest on which should be paid by the life tenant, and such hfe tenant neglects or refuses to pay such interest, the remainderman may pay such interest, and recover the amount thereof, together with interest thereon from the time of such payment, of the life tenant. Formerly sections i, 2, Laws of 1894, chapter 315, "An act in relation to interest on mortgages and other liens upon real estate held by a life tenant. Section i. Whenever the real estate held by any person or persons for life shall be incumbered by mortgage or other lien, the interest on which should be paid by the life tenant, and such life tenant shall neglect or refuse to pay such interest, it shall be lawful for the remainderman to pay such interest, and to recover the amount so paid, together with interest thereon from the time of such payment, in an action against such life tenant whose duty it was to have paid such interest. § 2. This act shall take effect immediately."** Former Law. Before the statute of 1894, set out above, a life tenant was bound in equity to keep down the interest on charges out of the rents and profits. He was not bound to extinguish the principal of the charges.®^ If he were forced to do so, he became a creditor of the estate for the amount so paid."^ He was not obliged to pay toward the interest anything beyond the amount of the rents, and if he did he became a creditor of the estate for the excess.®^ Where the payment of interest is charged by a testator on the estate in remainder and not on the life tenant, the latter is exempted from paying interest on incumbrances."* In some cases equity will apportion charges between the life tenant and the remaindermen.®^ Section 233. Section 233 is an enabling section, giving an action at law to the remainderman, instead of a suit in equity."* Savings of Life Tenants. Savings of life tenants, out of income, be- long to the life tenants absolutely.®'^ 60 Repealed, chap. 547, Laws of sington v. Bonserie, 7 De G., M. & 1896. G. 134. «i4 Kent, Comm. 74; House v. 6* Mosely v. Marshall, 22 N. Y. 200. House, 10 Paige, 158 ; Carter v. ' «5 Peck v. Sherwood, 56 N. Y. 615 ; Youngs, 42 N. Y. Super. Ct. 418; Pom. Eq. Juris., § 1223; Story, Eq. Wilson V. Quimby, 73 Hun, 524. Juris., § 487. 62 I Story, Eq., §§ 486, 488; Mosely 86 Sage v. City of Gloversville, 43 V. Marshall, 27 Barb. 42. App. Div. 245. 63 Doane v. Doane, 46 Vt. 485 ; Ken- 67 Matter of Cutler, 23 Misc. Rep. 47 508. 738 Equity Jurisdiction not Abridged. § 234. Powers of courts of equity not abridged. — Nothing contained in this article abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance. Formerly 2 Revised Statutes, 135, section 10 : § 10. Nothing in this Title contained, shall be construed to abridge the powers of courts of equity, to compel the specific performance of agree- ments, in cases of part performance of such agreements.^s Note on this Enactment. How far the jurisdiction of the chan- cellor was established by the Constitution of 182 1 may have been regarded as an open question at the time of the enactment of the Revised Statutes. But had it been fixed, the Legislature could not abridge it.®® Legislature may not Abridge Constitutional Jurisdiction. The Legis- lature cannot abridge the powers of a constitutional court.'''' In Alexander v. Bennett, the Court of Appeals said on this point: " We are of opinion that, as the Constitution declares that the jurisdiction shall remain in the court, the court itself cannot relin- quish that jurisdiction, and that any act authorizing it so to do violates the constitutional provision. If this provision were in- tended solely for the protection of the court or its judges they might waive it; but we do not think it was so intended. It was, in our judgment, like the whole judicial system of the State, in- tended for the benefit of the people, and to secure to litigants a forum in which they might have their controversies Htigated. The jurisdiction which the Constitution preserves * * * is inalien- able and carries with it the corresponding duty on the part of those courts to exercise it, when called upon in proper form so to do." Object of this Section. This section declares the intention of the Legislature not to abridge the jurisdiction of the courts of equity to compel the specific performance of agreements in cases of part performance," even if such agreements are not in writing as re- quired by the Statute of Frauds.''^ «8 Repealed, chap. 547, Laws of ^^ §§ 207, 224, The Real Prop. Law; 1896. Lamb v. Lamb, i8 App. Div. 250, 256; 69 Alexander v. Bennett, 60 N. Y.' Van Epps v. Clock, 25 N. Y. St. Rep. 204. 896, 7 N. Y. Supp. 21; Russell v. ''Old., supra. Briggs, 165 N. Y. 598; Greely v. TiCanda v. Totten, 157 N. Y. 281, Shelmidine, 83 id. 559; Veeder v. 287. Herstmann, 85 id. 154; Mackall v. Ol- cott, 93 id. 282, 290. Construction of Covenants in Mortgages of Leases. 739 § 235. Construction of covenants in mortgages on leases of real property and bonds.— In mortgages on leases of real prop- erty and in bonds secured thereby, the following or similar covenants or agreements must be construed as follows: I. In default of payment, mortgagee to have power to sell. A covenant that the mortgagor " will pay the indebtedness, as provided in the mortgage, and if default be made in the payment of any part thereof, the mortgagee or obligee shall have power to sell the premises therein described, according to law," must be construed as meaning that the mortgagor or obligor shall well and truly pay unto the mortgagee or obligee the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, according to the condition of the said bond or obligation. And if default shall be made in the payment of the said sum of money therein mentioned, or in the interest which shall accrue thereon, or of any part of either, that then and from thenceforth it shall be lawful for the said mortgagee or obligee, his legal representative or assigns, to sell, transfer and set over, all the rest, residue and remainder of the said term of years then yet to come, and all other, the right, title and interest of the said mort- gagor or obligor of, in and to the same, at public auction, according to the act in such case made and provided. And as the attorney of the said mortgagor or obligor for that purpose by these presents duly authorized, constituted and appointed, to make, seal, execute and deliver to the purchaser or purchasers thereof, a good and sufificient as- signment, transfer or other conveyance in the law, for the said premises, with the appurtenances; and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obli- gation, together with the costs and charges of advertise- ment and sale of the said premises, rendering the overplus of the purchase money (if any there shall be) unto the said mortgagor or obligor, his legal representatives or assigns ; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the said mortgagor or obligor, and against all persons claiming or to claim the premises or any part thereof, by, from or under him or them, or any of them. 2. Mortgagor to keep buildings insured A covenant " that the mortgagor will keep the buildings on the said 7i0 Construction of Covenants in Mortgages of Leases. premises insured against loss by fire, for tlie- benefit of tlie mortgagee," must be construed as meaning that tlie said mortgagor or obligor shall and will keep the build- ings erected and to be erected upon the lands above conveyed, insured against loss and damage by fire, by insurance, and in an amount approved by the said mort- gagee or obligee and his assigns, and either assign the policy and certificates thereof or have such insurance made payable to the said mortgagee or obligee or his assigns, and in default thereof it shall be lawful for the said mortgagee or obhgee and his assigns to effect such insurance, and the premium and premiums paid for effect- ing the same shall be a lien on the said mortgaged premises, added to the amount of the said bond or obliga- tion, and secured by these presents, and payable on demand, with legal interest. 3. Mortgagor to pay rent and charges on premises. A covenant that the mortgagor " will pay the rent and other charges mentioned in and made payable by said indenture or lease within day after said rent or charges are payable," must be construed as meaning that the said mortgagor or obligor and his legal repre- sentatives and assigns, will pay or cause to be paid and discharge all rent and rents mentioned in and made pay- able by the indenture of lease aforesaid, and also all taxes, ; assessments or other charges that now are a lien, or here- after shall or may be levied, assessed or imposed and become a lien upon the premises above described or any part thereof; and in default thereof, for the space of after such taxes or assessments or after the said rent or rents, or any of them shall have become due and payable by the terms of said lease or by law, then and in each and every such case the said mortgagee or obligee, his legal representa- tives or assigns may, at option, and without notice, pay such rent or rents, taxes, assessments or other charges and expenses, and the amount so paid, and interest thereon, from the time of such payment, shall forthwith be due and payable from the said mortgagor or obligor, his legal representatives or assigns, to the said mortgagee or obligee, his legal representatives or assigns, and shall be deemed to be secured by these presents, and shall be collectible in the same manner, and at the same time, and Construction of Covenants in Mortgages of Leases. 741 upon the same conditions as the interest then next matur- ing upon the principal sum hereinbefore mentioned. 4. Agreement that whole sum shall become due. The words " And it is hereby expressly agreed that the whole of the said principal sum shall become due at the option of said mortgagee or obligee after default in the payment of any installment of principal or after default in the payment of interest for days, or after default in the payment of any rent or other charge made payable in and by said indenture of lease for days, or after default in the payment of any tax or assessment for days after notice and demand," must be con- strued as meaning that should any default be made in the payment of any installment of principal or any part thereof, or of said interest or any part thereof, or of any rent or other charge made payable in and by said inden- ture of lease, on any day whereon the same is made pay- able, or should any tax or assessment, which now is or may be hereafter imposed upon the premises hereinafter described become due and payable, and should the said interest, rent or other charge aforesaid, remain unpaid and in arrear for the space of days, or such tax or assessment remain unpaid and in arrear for days after written notice by the mortgagee or obligee, his executors, administrators or assigns, that such tax or assessment is unpaid, and demand for the payment thereof, then and from thenceforth, that is to say, after the lapse of either one of said periods, as the case may be, the aforesaid principal sum, with all arrearage of inter- est thereon, rent and other charges paid by the mortgagee or obligee, shall, at the option of the said mortgagee or obHgee, his executors, administrators or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, anything thereinbefore contained to the contrary thereof in anywise notwithstanding. Comment on Section 235, Supra. This section was not a part of The Real Property Law as originally passed. It was enacted by chapter 338, Laws of 1898, and became a law on July i, 1898. This act is part of that reform which was intended to relieve the public offices from the necessity of transcribing long forms of covenants.'^^ T3 Vide §§ 218, 219, 220, 221, 222, 223, The Real Prop. Law. 742 Mortgages of Leases. Mortgagee, when Liable for Rent. A mortgagee of a term, who has not taken possession, actually or constructively, is not liable for the rent.''* Subsequent Mortgage. A lessee subsequent to a mortgage must attorn before he is liable for rent to such mortgagee, and the mort- gagee of such a lessee would be in the same position.^^ Mortgage without Covenants. A mortgage without covenant of seisin and warranty is inoperative on property subsequently ac- quired by mortgage.''^ Agreement Clogging Equity of Redemption. When an instrument is operative by way of mortgage, no bye-agreement contemporane- ously relinguishing the equity of redemption is enforcible.'^'' For, " once a mortgage always a mortgage." ''^ '^* Levy V. Long Island Brewery, Macauley v. Smith, 132 N. Y. 524; 2$ Misc. Rep. 410. Mooney v. Byrne, 163 id. 86 ; Hughes '^^ Sitpra, p. 622. V. Harlam, 166 id. 427; Brann v. ■^6 Donovan v. Twist, 85 App. Div. Vollmer, 89 App. Div. 43. 130. ''8 Maxim of Courts of Equity, "Story, Eq. Juris. § 1019; § 1194, Pomeroy Eq. Jurisp. Construction of Clause in Mortgages of Leases. 743 § 236. Construction of grant of appurtenances, et cetera, and all of the rights and estate of the mortgagor — In any mort- gage on lease of real property the words " together with the appurtenances and all the estate and rights of the part of the first part of, in and to said premises under and by virtue of the aforesaid indenture of lease," must be construed as meaning, together with all and singular the edifices, buildings, rights, members, privileges and appurtenances thereunto belonging or in anywise appertaining; and also all the estate, right, title, interest, term of years yet to come and unexpired, property, pos- session, claim and demand whatsoever, as well in law as in equity, of the said mortgagor or obligor, of, in and to the said demised premises, and every part and parcel thereof, with the appurtenances; and also the said indenture of lease, and the renewal therein provided for, and every clause, article and condition therein expressed and con- tained. Comment on Section 236, Supra. This section was not a part of The Real Property Law, as originally passed, but it was enacted by chapter 338, Laws of 1898, and became a law on July i, 1898. Section 236 of this act refers to the form set out in section 237 of the same act. This section is a part of the reform intended to relieve the public record offices from the necessity of transcribing long forms of conveyances.''^ This section should be read in con- nection with the sections immediately preceding and subsequent.^" Mortgage on Lease. In former days the common way of mort- gaging a lease, adopted by good conveyancers, was by an assign- ment of the same by way of mortgage.*^ It must be very doubtful whether a mortgage of a lease is not now virtually an assignment thereof, as the mortgagee must acquire the same mm onere. The form set out in this statute*^ seems defective in making no provi- sion for the delivery up of the original lease on default of the mort- gagor to observe his covenants, and evidently contemplates a fore- closure, before the mortgagee shall succeed to the security mort- gaged. 79 Vide supra, §§ 218, 219, 220, 221, 81 See Jones, Conv. (London, 1826) 222, and 223, The Real Prop. Law. passim. 80 §§ 23s, 237, The Real Prop. Law. 82 § 237, The Real Prop. Law. 744 Mortgagees of Leases. Foreclosure Sale of Lease. A purchaser at a sale in action to fore- close a mortgage on a lease is not to be relieved because of pendency of action to set aside the lease, if he knew of such pendency at the time of the sale.** Mortgagee of Leasehold may Pay Rent. A mortgagee of a lease- hold may pay rent if it is overdue, and maintain his action over against the tenant.** *3Dunlop V. Mulry, 85 App. Div. 8*DunIop v. James, 174 N. Y. 411. 498. Short Form of Mortgage of Lease. 745 § 237. What form of mortgage on lease of real property. — The use of the following form of instrument for mort- gages on leases of real property is lawful but this section does not prevent or invalidate the use of other forms. SCHEDULE D. Mortgage on Lease of Real Property. This indenture, made the day of in the year one thousand hundred and between of (insert residence) of the first part and of (insert residence) of the second part; whereas did, by a certain indenture of lease, bearing date the day of in the year one thousand eight hundred and ninety- demise, lease and to farm let unto and to executors, administra- tors and assigns, all and singular the premises hereinafter mentioned and described, together with their appurte- nances; to have and to hold the same unto the said and to executors, administrators and assigns, for and during and until the full end and term of years, from the day of one thou- sand eight hundred and ninety- fully to be com- plete and ended, yielding and paying therefor unto the said and to or assigns, the yearly rent or sum of And whereas, the said part of the first part justly indebted to the said part of the second part, in the sum of lawful money of the United States of America, secured to be paid by certain bond or obligation, bearing even date herewith, con- ditioned for the payment of the said sum of on the day of eighteen hundred and ninety- and the interest thereon to be computed from at the rate of per centum per annum and to be paid It being thereby expressly agreed that the whole of the said principal sum shall become due at the option of the mortgagee or obligee after default in the payment of interest, taxes or assessments or rents as hereinafter provided. Now this indenture witnesseth that the said part of the first part, for the better securing the payment of the 746 Short Form of Mortgage of Lease. said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, and also for and in consideration of the sum of one dollar, paid by the said part of the second part, the receipt whereof is hereby acknowledged, doth grant and release, assign, transfer and set over unto the said part of the second part, and to his heirs (or successors) and assigns forever. (Description.) Together with the appurtenances and all the estate and rights of the part of the first part of, in and to said premises under and by virtue of the aforesaid indenture of lease. To have and hold the said indenture of lease and renewal, and the above granted premises, unto the said part of the second part, his heirs and assigns, for and during all the rest, residue and remainder of the said term of years yet to come and unexpired, in said indenture of lease and in the renewals therein provided for; subject, neverthe- less, to the rents, covenants, conditions and provisions in the said indenture of lease mentioned. Provided always that if the said part of the first part shall pay unto the said part of the second part, the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, at the time and in the manner mentioned in the said condition, that then these presents and the estate hereby granted, shall cease, determine and be void. And the said part of the first part covenant with the said part of the second part as follows: First. That the part of the first part will pay the indebtedness as hereinbefore provided. And if default shall be made in the payment of any part thereof the said part of the second part shall have power to sell the premises therein described according to law. Second. That the said premises now are free and clear of all incumbrances whatsoever, and that ha good right and lawful authority to convey the same in manner and form hereby conveyed. Third. That the part of the first part will keep the buildings on the said premises insured against loss by fire, for the benefit of the mortgagee. Short Form of Mortgage of Lease. 747 Fourth. That the part of the first part will pay the rents and other charges mentioned in and made payable by said indenture of lease within days after said rent or charges are payable. Fifth. And it is hereby expressly agreed that the whole of the said principal sum shall become due at the option of the said mortgagee or obligee after default in the pay- ment of any instalment of principal, or after default in the payment of interest for days, or after default in the payment of any rent or other charge made payable by said indenture of lease for days, or after payment^ of any tax or assessment for days after notice and demand. In witness whereof, the said part of the first part to these presents ha hereunto set hand and seal the day and year first above written. Sealed and delivered in the presence of Comment on Section 237, Supra. This section was not a part of The Real Property Law as originally passed. It was enacted by chap- ter 338, Laws of 1898, and became a law on July i, 1898. This section is a part of the reform intended to relieve the public offices from the necessity of transcribing long forms of convey- ances.*^ It should be read in connection with the two sections last preceding it.^^ Mortgagee's Liability for Rent. A mortgagee of a lease, if he has not taken possession, actually or constructively, is not liable for rent ; ** but he may pay same if it is in default and sue tenant.^* Short Form. If a short form of mortgage is intended to be used, it is important that it be adopted literally, or the benefit of the statutory interpretation of the covenant may be lost.®** Omitted Sections of this Article. At present there are no sections of this article numbered 238 or 239. ^ So in original law. It must mean ^^ Dunlop v. James, 174 N. Y. 411. " after default in the payment," etc. ^ Mutual Benefit Loan Co. v. 88 Vide supra, pp. 739, 743. Jaeger, 34 App. Div. go ; Rawle, 87 §§ 23s, 236, The Real Prop. Law. Cov. for Tit. (sth ed.), p. 454, note 4. 88 Levy V. Long Island Brewery, 26 Misc. Rep. 410. 748 The Real Property Law. ARTICLE VIIL Recording Instiuments Affecting Real Property. Section 240. Definitions; effect of article. 241. Recording of conveyances. 242. By whom conveyance must be acknowledged or proved. 243. Recording of conveyances heretofore acknowledged or proved. 244. Recording executory contracts and ppwers of attorney. 245. Recording of letters patent. 246. Recording copies of instruments which are in secretary of state's office. 247. Certified copies may be recorded. 248. Acknowledgments and proofs within the state. 249. Acknowledgments and proofs in other states. 24pa. Acknowledgments and proofs in Porto Rico, Philippines, Cuba, etc. 250. Acknowledgments and proofs in foreign countries. 251. Acknowledgments and proofs by married women. 252. Requisites of acknowledgments. 253. Proof by subscribing witness. 254. Compelling witnesses to testify. 255. Certificate of acknowledgment or proof. 256. When certificate to state time and place. 257. When certificate must be under seal. 258. Acknowledgment by corporation and form of certificate. 259. When county clerk's authentication necessary. 260. When other authentication necessary. 261. Contents of certificate of authentication. 262. Recording of conveyances acknowledged or proved without the state, when parties and certifying officer are dead. 263. Proof where witnesses are dead. 264. Recording books. 265. Indexes. 266. Order of recording. 267. Certificate to be recorded. 268. Time of recording. 269. Certain deeds deemed mortgages. 270. Recording discharge of mortgage. 270a. Recording discharge of mortgage in cities of first class. 271. Effect of recording assignment of mortgage. 272. Recording of conveyances made by treasurer of Connecticut. 273. Revocation to be recorded. 274. Penalty for using long forms of covenants. 275. Certain acts not affected. 276. Actions to have certain instruments canceled of record. 277. Officers guilty of malfeasance liable for damages. Definitions; Effect of Article VIII. 749 § 240. Definitions; effect of article — The term "real prop- erty," as used in this article, includes lands, tenements and hereditaments and chattels real, except a lease for a term not exceeding three years. The term " purchaser," includes every person to whom any estate or interest in real property is conveyed for a valuable consideration, and every assignee of a mortgage, lease or other condi- tional estate. The term " conveyance," includes every written instrument, by which any estate or interest in real property is created, transferred, mortgaged or assigned, or by which the title to any real property may be affected, including an instrument in execution of a power, and although the power be one of revocation only; except a will, a lease for a term not exceeding three years, an executory contract for the sale or purchase of lands, and an instrument containing a power to convey real property as the agent or attorney for the owner of such property. The term " recording officer," means the county clerk of the county, except in the counties of New York, Kings or Westchester, where it means the register of the county. This article does not apply to leases for life or lives, or for years, heretofore made, of lands in either of the counties of Albany, Ulster, Sullivan, Herkimer, Dutchess, Columbia, Delaware or Schenectady. Formerly i Revised Statutes, 736, section 114, and i Revised Statutes, 762, sections 36, 37, 38, 39, and i Revised Statutes, 763, section 42: § 114. Every instrument, except a will, in execution of a power, and although the power may be a power of revocation only, shall be deemed a conveyance within the meaning, and subject to the provisions, of the third Chapter of this Act.l § 36. The term " real estate," as used in this Chapter, shall be construed as coextensive in meaning with " lands, tenements and hereditaments," and as embracing all chattels real, except leases for a term not exceeding three years.2 § 37. The term " purchaser," as used in this Chapter, shall be construed to embrace every person to whom any estate or interest in real estate, shall be conveyed for a valuable consideration, and also every assignee of a mort- gage, or lease, or other conditional estate.^ § 38. The term " conveyance," as used in this Chapter, shall be construed to embrace every instrument in writing, by which any estate, or interest in chap. 547, Laws of 1 Repealed, chap. 547, Laws of 3 Repealed, 1896. 1896. 2 Repealed, chap. 547, Laws of 1896. 750 Recording Acts. real estate is created, aliened, mortgaged or assigned ; or by which the title to any real estate, may be affected in law or equity; except last wills and testaments, leases for a term not exceeding three years, and executory con- tracts for the sale or purchase of lands.* § 39. The preceding section shall not be construed to extend to a letter of attorney, or other instrument containing a power to convey lands as agent or attorney for the owner of such lands ; but every such letter or instrument, and every executory contract for the sale or purchase of lands, when proved or acknowledged, in the manner prescribed in this Chapter, may be recorded in the clerk's office of any county, in which any real estate, to which such power or contract relates, may be situated ; and when so proved or acknowledged, and the record thereof when recorded, or the transcript of such record, may be read in evidence, in the same manner, and with the like effect, as a conveyance recorded in such county.^ § 42. The provisions of this Chapter shall not extend to leases for life or lives, or for years, in the counties of Albany, Ulster, Sullivan, Herkimer, Dutchess, Columbia, Delaware and Schenectady.® History of the Laws Concerning the Compulsory Recording of Conveyances. The laws concerning the legal effect of the record of conveyances are very ancient in New York. Prior to A. D. 1664, the Dutch government required certain instruments to be recorded in public offices.'^ But this does not prove that the existing laws were, as some authors assert, of Dutch origin. The recording of deeds had been made compulsory at a very early date in New England, and in Virginia. After the English conquest in 1664, the English public authorities passed a number of acts* giving legal effect to the record, or failure to record, instruments of conveyance in the prov- ince of New York. These laws were amplified, from time to time, prior to the establishment of the independent State government.*' * Repealed, chap. 547, Laws of veyances. Deeds and Writings;" 1896. Charter of Libertys of 1683; An Act 6 Repealed, chap. 547, Laws of to Prevent Frauds in the Conveyance- 1896. ing of Lands after December 25, 1683 ; * Repealed, chap. 547, Laws of "A bill to prevent Decept and Ffor- 1896. gerye," passed October, 1684; N Y. ■^ Laws and ordinances of New C. & H. R. R. R. Co. v. Brock- Netherland, 114, 159; Van Cortlandt way B. Co., 158 N. Y. 470 V. Tozer, 17 Wend, at p. 340. The * The history of the early legisla- last case does not refer to very early tion on this subject is given at length acts. N. Y. C. & H. R. R. R. Co. in " History of the Law of Real Prop- V. Brockway B. Co., 158 N. Y. 470. erty in New York" (Baker, Voorhis 8 Duke's Lawes of 1664, title " Con- & Co., 1895) at pp. 86, 87, ef passim. Recording Acts. 751 But until the Revised Statutes there was no uniform or general law in the State on this subject.^*' Before this, such acts were local in operation and confined to particular counties, called " recording counties." ^^ It is erroneous to suppose that the regis- tration of conveyances in public offices was peculiar to America. Deeds of bargain and sale were required to be enrolled in the King's courts of record at Westminster by the " Statute of Inrol- ments." ^^ In 1704, Yorkshire, in England, was made a recording county,^'' and four years later the great county of Middlesex fol- lowed." The decisions of the English courts on the effect of these several acts were subsequently very influential in America.^^ Section 240, Supra. As the present section of this act now incor- porates a number of sections formerly in the Revised Statutes, the decisions bearing upon it are those which were formerly rendered upon the component sections. It is, therefore, necessary to arrange the notes of such decisions in the old order, in conjunc- tion with the appropriate sections of the Revised Statutes. I Revised Statutes, 736, Section 114. Referring to I Revised Stat- utes, 736, section 114, above set forth, as now part of this act, it has been held that every instrument, except a will, in the execu- tion of a power, was a conveyance which must be recorded to protect the estate conveyed against subsequent bona fide purchasers or grantees.^" A recorded power of attorney to convey lands remains in force as to purchaser in good faith without notice from the attorney, though the grantor meanwhile conveys the lands by unrecorded deed." 10 Jackson V. Chamberlain, 8 Wend. IB Jackson v. Burgott, 10 Johns, at p. 62s; 2 R. L. of 1813, 369; FeHx 457; Dunham v. Day, 15 id. 555; V. Devlin, 90 App. Div. 103. Hurst v. Hurst, 2 Wash. Cir. Ct. 6g, II See 1st edition of the Revised 74; Lamont v. Cheshire, 65 N. Y. 30, Statutes, appendix to vol. 3 (pp. 25, 40. 42) for the laws of this State enacted i^ Jackson v. Edwards, 7 Paige, 386, prior to the Revised Statutes. The 402, 22 Wend. 498; Belmont v. Colonial laws were all repealed in O'Brien, 12 N. Y. 394, 404; Belden v. 1828, Laws of 1828-g, chap. 21, § 4. Meeker, 47 id. 307; Decker v. Boice, 1227 Hen. Vni, chap. 16; Van 83 id. 215 ; Frear v. Sweet, n8 id. 454. Cortlandt v. Tozer, 17 Wend. 338, 344, i'^ Gratz v. Land & River Imp. Co., et supra, pp. 649, 670. 82 Fed. 381 ; and see § 273, The 13 2 & 3 Anne, chap. 4. Real Prop. Law, and Williams v. Bir- 1* 7 Anne, chap. 20. beck, Hoff. Ch. 359. 752 Recording Acts. 1 Revised Statutes, 736, Section 36. Having reference to I Revised Statutes, 736, section 36, now incorporated in this section, the term " real estate " has been held to include terms of years beyond three.'* But while chattels real are personal property, they are not within the purview of the chattel mortgage statutes requiring filing and refiling to preserve the lien as aginst creditors.^^ The Re- vised Statutes in parts modified the meaning of the common-law term " estates in lands " by including terms of years.^** I Revised Statutes, 762, Section 37. Referring to I Revised Stat- utes, 762, section 37, above set forth, and now incorporated in this section, the term " purchaser " has been authoritatively decided to include a vendee, in a contract of sale, who has paid the purchase money ;^i also, a person who acquires a subsequent mortgage on the faith of a prior " satisfaction-piece," and an asignee of a mortgage.^ I Revised Statutes, 762, Section 38. Referring to I Revised Stat- utes, 762, section 38, above set forth, the term " conveyance " has been held to include a mortgage;^ an assignment of mortgage;^* a satisfaction of a mortgage;^ a covenant touching an easement,^^ but not a power to assign mortgages or convey.^'' 18 The Mayor, etc. v. Mabie, 13 N. Thomas, 85 App. Div. 243, and see, Y. 151, 158; Ely V. Schofield, 35 Barb, under next section, "purchaser," pp. 330, 334; Broman v. Young, 35 Hun, 754, 761, infra. 173, 180. Cf. Westervelt v. The Peo- 23 Decker v. Boice, 83 N. Y. 215 ; pic, 20 Wend. 416. Lamed v. Donovan, 84 Hun, 533. 19 Laws of 1833, chap. 279; Laws of 24 Vanderkampf v. Shelton, 11 Paige, 1892, chap. 677 ; Booth v. Kehoe, 71 28 ; Lamed v. Donovan, 84 Hun, 533 ; N. Y. 341 ; State Trust Co. v. Casino Belden v. Meeker, 47 N. Y. 307 ; The Co., 19 App. Div. 344. Bank for Savings v. Frank, 45 N. Y. 20 Supra, pp. 141, 191 ; Despard v. Super. Ct. 404 ; Briggs v. Thompson, Churchill, 53 N. Y. 192, 199. 86 Hun, 607; Davies v. Jones, 29 21 Warner v. Winslow, i Sandf. Ch. Misc. Rep. 233. 430, 438. Cf. Boyd v. Schlesinger, 59 25 Bacon v. Van Schoonhoven, 87 N. Y. 301; Hunt V. Johnson, 19 id. N. Y. 446; Frear v. Sweet, 118 id. 279. 454; Briggs V. Thompson, 86 Hun, 22 Van Keuren v. Corkins, 6 T. & C. 607. 355 ; Clark v. Clark, 28 Hun, 510; 26 Bradley v. Walker, 138 N. Y. Weaver v. Edwards, 39 id. 233, 235 ; 291 ; et vide infra, § 241, The Real Larned v. Donovan, 84 id. 533; Decker Prop. Law. V. Boice, 83 N. Y. 215, 220; Bacon v. 27 -Williams v. Birbeck, Hoff. Ch. Van Schoonhoven, 87 id. 446; Frear 359. V. Sweet, 118 id. 454; Gibson v. Recording Acts. 753 I Revised Statutes, 762, Section 39. Referring to i Revised Stat- utes, 762, section 39, above set forth, see the case of Boyd v. Schlesinger.^* I Revised Statutes, 763, Section 42. Referring to i Revised Stat- utes, 763, section 42, above set forth, the reader will observe that it was taken from an earlier statute,'^* which omitted, however, " original leases in fee." ^^ These perpetual leases were probably originally excepted because they were thought to be of land within the precincts of manors, and consequently enrolled in the manor records.^' 2859 N. Y. 301. 30 Note of Revisers to i R. S. 763, 29 Laws of 1823, p. 413, § 5. 5 42. 31 Vide supra, pp. 173-185. 48 754 Record of Conveyances. § 241. Recording of conveyances A conveyance of real prop- erty, within the state, on being duly acknowledged by the person executing the same, or proved as required by this chapter, and such acknowledgment or proof duly certified when required by this chapter, may be recorded in the office of the clerk of the county where such real property is situated. Every such conveyance not so recorded is void as against any subsequent purchaser in good faith and for a valuable consideration, from the same vendor, his heirs or devisees, of the same real prop- erty or any portion thereof, whose conveyance is first duly recorded. Formerly i Revised Statutes, 756, section i : § I. Every conveyance of real estate, within this state, hereafter made, shall be recorded in the office of the clerk of the county where such real estate shall be situated; and every such conveyance not so recorded, shall be void as against any subsequent purchaser, in good faith and for a valu- able consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.^^ I Revised Statutes, 756, Section i. I Revised Statutes, 756, section I, above set forth, was the result of many earlier laws on the same subject.^^ The legal effect of recording conveyances is entirely due to statutes.** What Recorded Instruments Operate as Notice. The record of a con- veyance or mortgage by one having title at the time, operates as notice to all subsequent bona fide purchasers for value.*® But the record of an instrument which does not create, alien, mortgage or assign some interest or estate in real property does not so operate.*^ The record of a conveyance by one having no title 32 Repealed, chap. 547, Laws of id. 457, 462; Ackerman v. Hunsicker, 1896. 8s id. 43 ; Tarbell v. I R. L. 369, 372 ; Laws of 1819, p. 288 ; McPhe^son v. Rollins, 269; Laws of 1821, p. 127; Laws of 316; Cambridge Bank v. Delano, 48 1822, pp. 261, 284; Laws of 1823, p. id. 326. Cf. Schutt v. Large, 6 Barb. 412. Notes of Revisers to i R. S., 373. 1 part 2, chap. 3. *^ Ludlow v. Van Ness, 8Bosw. 178; I 3* Felix V. Devlin, 90 App. Div. 103. Gillig v. Maas, 28 N. Y. 191, 213 ; Dil- 35 Jackson v. Post, 15 Wend. 588; laye v. Commercial Bank, 51 id. 34s; Raynor v. Wilson, 6 Hill, 469 ; Purdy Dunlop v. Avery, 8g id. 592 ; Bradley V. Huntington, 42 N. Y. 334; Briggs v. Walker, 138 id. 291; Edwards v. v. Davis, 20 id. IS; Young v. Guy, 87 Header, 33 N. Y. St. Rep. 126; Oli- Record of Conveyances. 755 /s ordinarily a nullity,^'' and so is the record of a paper not required fto be recorded by law,^^ and the record of a forged deed.^* I Effect of Record. The notice given by recording is not retro- Ispective, and does not afifect prior titles.*" ^ Object of this Section. The statute is said to have been made to protect innocent purchasers against the frauds of sellers; to prevent those who once had title to land from making successive sales, and thereby defrauding one or more of the purchasers.*^ It applies to successive purchases from the same seller.*^ The statute has, however, no reference to the relative priority of recorded instruments executed simultaneously.*^ Priority of Record. A subsequent deed, if first recorded, ordi- narily takes effect before a prior, unrecorded deed,** unless the sub- sequent purchaser has actual notice of such prior unrecorded conveyance.*^ Judge Wendell, usually a most careful reporter, states in the head note to Jackson ex dem., etc. v. Post, that " a purchaser for value cannot hold the land conveyed to him if previously to the conveyance to his grantor the premises were conveyed to a third phant V. Bums, 146 N. Y. 218, 233. Cf. GrandiiT^. Hernan3ez7^ 29 Hun, 399; Heilbrun v. Hammond, 13 id. 474 ; Wilcox V. Drought, 71 App. Div. 402; Tarbell v. West, 86 N. Y. 280; Dana v. Jones, 91 App. Div. 496, 500. 3''Tefft V. Munson, S7 N. Y. 97; Oliphant v. Burns, 146 id. 218, 233. 38 Williams v. Birbeck, Hoff. Ch. 359; Davidson v. Crook, 45 App. Div. 616. 39 Harden v. Dorthy, 160 N. Y. 39, 52. *<• Howard Ins. Co. v. Halsey, 8 N. Y. 271 ; Stuyvesant v. Hone, i Sandf. Ch. 419; affd., 2 Barb. Ch. 151 ; Pettus V. McGowan, ^y Hun, 409; Fehx v. Devlin, 90 App. Div. 103. « Jackson v. Post, 15 Wend. 588, 594; Raynor v. Wilson, 6 Hill, 469. *2 Raynor v. Wilson, 6 Hill, 469 ; Howard Ins. Co. v. Halsey, 8 N. Y. 271 ; Briggs v. Davis, 20 id. 15 ; Page v. Waring, 76 id. 463; Tarbell v. West, 86 id. 280, 289. Sed cf. Schutt V. Large, 6 Barb. 373. *3 Green v. Warnick, 64 N. Y. 220 ; White V. Leslie, 54 How. Pr. 394; Granger v. Crouch, 86 N. Y. 494. Cf. Decker v. Boice, 83 id. 215, 221 ; Heil- brun V. Hammond, 13 Hun, 471 ; Boies V. Gardner, 53 id. 236; Boies v. Ben- ham, 127 N. Y. 620; Collier v. Miller, 137 id. 332. ** Hetzel V. Barber, 69 N. Y. i ; Page V. Waring, 76 id. 463; Ward v. Isbill, 73 Hun, 550. Cf. Wilcox v. Drought, 71 App. Div. 402; Doody v. Hollwedel, 22 id. 456. See as to lien of purchase-money mortgage, Dusenbury v. Hurlburt, 59 N. Y. 541 ; Jaycox V. Hovencamp, 17 App. Div. 146; Boies v. Benham, 127 N. Y. 620; Ellis V. Horrman, 90 id. 466, and as to deeds under recorded power of at- torney, Gratz V. Land & Imp. Co., 82 Fed. 381. *^ Infra, p. 760. 756 Record of Conveyances. person by deed, and such deed be recorded anterior to the last purchase, although the deed to his grantor be first recorded. "*^ This statement is challenged by conveyancers as contrary to the facts and decision in that case, and also as contrary to law. Effect of Actual Notice. A grantee, with notice of an unrecorded prior conveyance, if he takes without consideration from a bona fide purchaser without such notice, acquires the title of his grantor, and is protected under the Recording Acts to the same extent that his grantor would have been.*'^ Unrecorded Deed or Mortgage has Priority over Judgment. An unre- corded deed or mortgage has preference over a judgment, unless there is a superior equity.** Effect of Recording a Deed Subsequently Avoided for Fraud. The eflfect of recording a conveyance if forged, is to confer no rights on the subsequent purchaser who, in good faith, relies on the record.** But where the deed is procured by fraud, and then recorded, another question may be presented concerning the rights of those who rely on the record, with no reason to suppose that the recorded title is fraudulent.®* Assumption of Mortgage. A deed of land subject to a mortgage which the grantee assumes and covenants to pay makes the latter the principal debtor, and the original mortgagor a surety ,®'^ and any extension of the mortgage, prejudicial to such surety, may operate to discharge him from the original liability.®^ Mortgagee and Tenant. A mortgagee, under a prior recorded mort- gage, providing that on default of payment of interest, etc., the rents shall be payable to mortgagee is entitled to rents, as against mortgagor, and if tenant pays them, after default in the mortgage, to mortgagor, it seems tenant is liable again to the mortgagor, as the recorded mortgage operates as notice.®^ *6 Jackson ex dem. v. Post, 15 wine, 89 Fed. 774; s. c, 95 id. 54. Wend. 588. Cf. Harden v. Dorthy, 160 N. Y. 39. 47 Wood v. Chapin, 13 N. Y. 509 ; 5i Calvo v. Davies, 73 N. Y. 213. Page V. Waring, 76 id. 463. Cf. ^2 Calvo v. Davies, 73 N. Y. 213 ; Clark V. McNeal, 114 id. 287. Spencer v. Spencer, 95 id. 353. Cf. 48 Weaver v. Edwards, 39 Hun, 233, Marshall v. Davies, 78 id. 414, 421 ; 235 ; Howells v. Hettrick, 160 N. Y. Title Guaranty & Trust Co. v. 308; Sweetland v. Buell, 164 id. 541; Weiher, 30 Misc. Rep. 250. Obermeyer v. Jung, 51 App. Div. 247. ^3 Moll v. McKeon, 35 Misc. Rep. « Marden v. Dorthy, 160 N. Y. 39. 551. 50 Thompson Nat. Bank v. Cor- Record of Conveyances. 757 Vendor's Lien. A vendor's lien for unpaid purchase money does not prevail over that of a bona fide mortgagee.^* Assignees of Mortgages. Bonds and mortgages may be transferred by mere delivery.^^ But to operate as notice, mortgages must be recorded. The assignee of a recorded mortgage upon real estate conveyed by the mortgagor to the mortgagee, after an assignment of the mortgage, has a valid lien as against a pur- chaser of the land from the mortgagee who took without notice of the assignment, notwithstanding the conveyance to the mort- gagee, as well as the conveyance from the mortgagee to the purcnaser, was recorded before the assignment was placed on record.^^ Both an assignment and a satisfaction of mortgage are conveyances within the meaning of sections 240 and 241 of this act." But an assignee of a mortgage takes it subject to all the equities, not only of the mortgagor, but of third persons. The only effect of recording an assignment of mortgage is to protect the assignee from a subsequent sale or satisfaction of the same mortgage.®* An assignee of a mortgage, though he took bona fide and for value, gets no preference over a prior unrecorded deed 5* Seymour v. McKinstry, io6 N. 446; Decker v. Boice, 83 id. 215; Y. 230; Hubbell v. Hendrickson, 17s Gibson v. Thomas, 85 App. Div. id. 175. It does prevail as against 243; Davies v. Jones, 29 Misc. Rep. volunteers and persons with con- 253. structive notice, see Mackreth v. Sym- 58 Rapps v. Gottlieb, 142 N. Y. 164 ; mons, IS Ves. 329, and White & Lamed v. Donovan, 84 Hun, 533; Tudor's notes to this case, i Lead. Trustees of Union College v. Wheeler, Gas. in Eq. 375; O'Brien v. Fleck- 61 N. Y. 88; Crane v. Turner, 67 id. stein, 86 App. Div. 140. 437; Greene v. Warnick, 64 id. 220; 55 Mahnken Co. v. Pelletreau, 93 Viele v. Judson, 82 id. 32 ; Hill v. App. Div. 420. Hoole, 116 id. 299, 302; Frear v. 56 Curtis V. Moore, 152 N. Y. 159; Sweet, 118 id. 454, 462; Belden v. Purdy v. Huntington, 42 id. 324; Meeker, 47 id. 307; Bacon v. Van Spicer v. First Nat. Bank, 55 App. Schoonhoven, 87 id. 446; Stevenson Div. 172. Brewing Co. v. Iba, 155 id. 224; 57 Supra, pp. 749, 7S4 ; Vanderkempf Schaefer v. Reilly, 50 id. 61 ; Title v. Shelton, 11 Paige, 28; Briggs v. Guaranty & Trust Co. v. Weiher, 30 Thompson, 86 Hun, 607; The Bank Misc. Rep. 250; Scheurer v. Brown, for Savings v. Frank, 45 N. Y. Super. 67 App. Div. 567; Owen v. Evans, 134 Ct. 404; Belden v. Meeker, 47 N. Y. N. Y. 514; Dodge v. Manning, 19 307; Westbrook v. Gleason, 79 id. App. Div. 29, 34. 23 ; Bacon v. Van Schoonhoven, 87 id. 758 Record of Conveyances. or mortgage, when his assignor could not claim it by reason of actual notice of such unrecorded conveyance.^^ Otherwise, if his assignor had no notice, though the assignee had.^" But where a junior mortgagee, with notice of a prior unrecorded mortgage, assigns his mortgage to a bona fide purchaser for value, who has no notice, such assignee is entitled to preference under the Recording Act, if he records his assignment before the first mortgage is recorded.®^ Mortgages Executed at the Same Time. While priority of record ordinarily controls the title under assignments of mortgage, yet it does not apply to mortgages executed at the same time. One of a series of mortgages, executed at the same time, the mortgagees agreeing that none of them should have priority over the other, can obtain no preference over the others by reason of its prior record, even if in the hands of a bona fide assignee for value, and without notice of the agreement.®^ Improper Satisfaction of Mortgages. For the relative rights arising under unlawful satisfactions of mortgages, see the cases cited under section 270 of this act. What Conveyances are within this Section. Both a referee's and a sheriff's deed are " conveyances " within the meaning of the Re- cording Act.®^ A satisfaction-piece is a conveyance within the act.®* An assignment of a mortgage is a conveyance.^ So a s» Decker v. Boice, 83 N. Y. 215; «2 Decker v. Boice, 83 N. Y. 215; Clark V. Mackin, 95 id. 346 ; Frear v. Smyth v. Knickerbocker Life Ins. Co., Sweet, 118 id. 454; Campbell v. 84 id. 589; Green v. Warnick, 64 id. Vedder, i Abb. Ct. App. Dec. 295 ; 220 ; Rhodes v. Canfield, 8 Paige, 545. De Lancey v. Stearns, 66 N. Y. 157 ; «3 Hetzel v. Barber, 69 N. Y. i ; Fort V. Burch, 5 Den. 187; Harris v. Slattery v. Schwannecke, 44 Hun, 75. Norton, 16 Barb. 264; Paul v. Paul, 118 N. Y. S43. and see cases cited, 23 N. Y. St. Rep. 370; Crane v. Tur- supra, p. 752, and under § 240, The ner, 67 N. Y. 437. Real Prop. Law. 60 Webster v. Van Steenbergh, 46 ^* Bacon v. Van Schoonhoven, 87 Barb. 211; Jackson v. Given, 8 Johns. N. Y. 446; Clark v. Mackin, 95 id. 137; Jackson v. Van Valkenberg, 8 346. Cow. 260 ; Varick v. Briggs, 6 Paige, ^ Gibson v. Thomas, 85 App. Div. 323 ; Page v. Waring, 76 N. Y. 463. 243 ; Davies v. Jones, 29 Misc. Rep. 61 Westbrook v. Gleason, 79 N. Y. 253 ; Matthews v. Damainville, 43 id. 23, 89 id. 641 ; Decker v. Boice, 83 id. 546. 215 ; Clark v. Mackin, 9S id. 346. Record of Conveyances. 759 mortgage to protect future advances to the extent of advances;^® a release of a mortgage;®'^ a covenant to convey ;^^ a covenant to hold property subject to an easement;^* a contract for entry on land and the cutting of timber,™ but not a license to enter and gather fruit." A power to assign a mortgage has been held not to be a conveyance.''^ An unsealed deed, though defective as a convey- ance, may be recorded and operative as notice.''^ A quitclaim deed is also a conveyance within the Recording Act.''* Meaning of " Conveyance " in this Section. The meaning of the term " conveyance " in the above section of this act is dependent on other sections of the same act : No estate or interest in lands other than leases for a term not exceeding one year, nor any trust or power, can be created, granted, assigned, surrendered, or declared''^ unless by act or operation of law, or by a deed or con- veyance in writing,''® subscribed by the grantor, or his agents, duly authorized, in writing, '''' or by a will.''^ A seal was, formerly, also necessary to pass an estate of freehold.''^ After 1892, a scroll, or the letters L. S., became a sufficient sealing.** The Real Prop- erty Law seems to have intended to dispense with a seal on a con- veyance of a freehold.*^ The consideration need not be expressed *8Ackerman v. Hunsicker, 8s N. section. Cf. Irving v. Campbell, 56 Y. 43; Robinson v. Williams, 22 id. N. Y. Super. Ct. 224. 380 ; Ketcham v. Wood, 22 Hun, 64 ; ''* Wilhelm v. Wilken, 75 Hun, 552. Ten Eyck v. Witbeck, 135 N. Y. 40. T5 Nqw §§ 207, 208, The Real Prop. «''Frear v. Sweet, 118 N. Y. 454; Law, formerly 2 R. S. 134, § 6, etc. Baker v. Thomas, 39 N. Y. St. Rep. 76 jj^ supra; Leonard v. Clough, 816; Van Keurin v. Corkins, 66 N. 133 N. Y. 292, 297; § 273, The Real Y. 77. Prop. Law. 88 Hunt V. Johnson, 19 N. Y. 279. 77 § 208, The Real Prop. Law, 6^ Bradley v. Walker, 138 N. Y. supra. 291. Cf. Ward v. Met. Ry. Co., 152 78 2 R. S. 135, § 7; Strough v. Wil- id. 39. der, 119 N. Y. 530, 535. 70 Vorebeck v. Roe, 50 Barb. 302. 79 2 R. S. 738, § 137; Morse v. Salis- 71 Taylor v. Millard, 118 N. Y. 244. bury, 48 N. Y. 636; Todd v. Union 72 Williams v. Birbeck, Hoff. Ch. Dime Institution, 118 id. 337, 128 id. 359. Cf. § 240, The Real Prop. Law, 636. Cf. Grandin v. Hernandez, 29 and Gratz v. Land & River Imp. Co., Hun, 399; Todd v. Eighmie, 4 App. 82 Fed. 381. Div. 9. 73 Grandin v. Hernandez, 29 Hun, so chap. 677, § 13, Laws of 1892. 399; Todd V. Eighmie, 4 App. Div. 9, 8I §§ 207, 208, supra, and notes of and see cases cited infra, under this Commissioners of Statutory Revision. 760 Record of Conveyances. in a deed/^ although it may be necessary to support such deed.^^ A lease is a conveyance.^* Priority of Record, Refers to Conveyances of Same Estate. It is only when two conveyances purport to convey the same property, that the subsequent grantee obtains a priority over the former one, by reason of a priority of record of his deed.*^ Effect of Actual Notice. Priority of record is of no avail in favor of one who has actual notice at the time he took title of an un- registered mortgage.*^ Whatever is sufficient to put the purchaser upon inquiry is, in general, equivalent to actual notice.*'' Thus actual open and visible possession is sufficient to make it a pur- chaser's duty to inquire as to the title of possessor;** but not when possession is of unimproved land.** Such possession to be notice But the common law is not expressly abrogated. *2 Cunningham v. Freeborn, ii Wend. 240, 248. Cf. Meriam v. Har- sen, 2 Barb. Ch. 232, 267. 83 See " Consideration," supra, p. 662; Moser v. Moore, 23 App. Div. 91 ; Schott V. Burton, 13 Barb. 173 ; Corwin v. Corwin, 6 N. Y. 342 ; Wood V. Chapin, 13 id. 509, 517; Ten Eyck V. Witbeck, 135 id. 40; Jackson v. Cadwell, i Cow. 622; and see Morris V. Ward, 36 N. Y. 587; Gray v. Bar- ton, SS id. 68 ; Adee v. Hallett, 3 App. Div. 308; Anderson v. Blood, 86 Hun, 244. 8* Stoltz v. Tuska, 76 App. Div. 137, 141- ssTreadwell v. Inslee, 120 N. Y. 458. 8« Butler V. Viele, 44 Barb. 166 ; Lament v. Cheshire, 65 N. Y. 30, 40, 41 ; Dingley v. Bon, 130 id. 607 ; Constant v. University of Rochester, 133 id. 640; Dunham v. Dey, IS Johns. S5S. And see La Neve v. La Neve (A. D. 1747), reported 3 Atk. 646, I Ves. 64 and 2 White & Tudor, Lead. Cas. in Eq. for the gen- eral principle. *'' Williamson v. Brown, 15 N. Y. 354; Baker v. Bliss, 39 id. 70; Acer v Wescott, 46 id. 384; Reed v. Gannon, 90 id. 345; Page v. Waring, 76 id. 463 ; Dingley v. Bon, 130 id. 607 ; Curtis v. Moore, 152 id. 159, 163; Lyon v. Morgan, 143 id. 505, 509; Cambridge Valley Bank v. Delano, 48 id. 326. ssPhelan v. Brady, 119 N. Y. 587; Holland v. Brown, 140 id. 344; Ward V. Met. Ry. Co., 152 id. 39; Raynor V. Timerson, 54 id. 639; Tuttle v. Jackson, 6 Wend. 213; Wright v. Douglass, ID Barb. 97 ; Troup v. Hurl- but, id. 354; Williams v. Birbeck, Hoff. Ch. 359; Bank of Orleans v. Flagg, 3 Barb. Ch. 316; Marden v. Dorthy, 160 N. Y. 39, 52. See for constructive notice by possession, note 2 White & Tudor, Lead. Cas. in Eq. 63, and extent of the notice; Cornell V. Maltby, 165 N. Y. 557; Shneider v. Mali, 84 App. Div. i. Cf. Laverty V. Moore, 33 N. Y. 658. 89 Brown v. Volkening, 64 N. Y. Record of Conveyances. 761 must not be consistent with the apparent title of record.^" Proof of actual notice as against a prior recorded deed must be extremely clear."^ Notice to an attorney may, or may not, be notice to the principal, according to the nature and duration of the agency.^- A purchaser is chargeable with notice of every fact affecting title, discoverable from the examination of a deed in the chain of title.®^ The legal title to an estate prevails as against a latent equity.®* But an assignee of a bond and mortgage takes subject to latent equities not only of the obHgor but of third persons represented by the mortgagor.®^ A Subsequent Purchaser for a Valuable Consideration. A subsequent purchaser for a valuable consideration, under this act, is one who surrenders, or parts with value,®^ without notice of an unrecorded conveyance, and who first records his own conveyance.®'' " Valu- able consideration " in the statute means the same as in the law 76; Holland v. Brown, 140 id. 344. Cf. Mut. Life Ins. Co. v. Dake, i Abb. N. C. 381, 391- 90 Brown v. Volkening,64 N.Y. 82; Pope V. Allen, 90 id. 298; Minton v. N. Y. El. R. R. Co., 130 id 332; Gibson v. Thomas, 85 App. Div. 243. 91 Riley v. Hoyt, 29 Hun, 114. 92 Constant v. University of Roch- ester, III N. Y. 604, 133 id. 640; Slat- tery v. Schwannecke, 118 id. 543; In- galls V. Morgan, 10 id. 178; Denton V. Ontario County Bank, 150 id. 126, 137; La Neve v. La Neve, 2 White & Tudor, Lead. Cas. in Eq. 26, and note, id. 69. 93 Cambridge Bank v. Delano, 48 N. Y. 326; Acer v. Wescott, 46 id. 384; McPherson v. Rollins, 107 id. 316, 322 ; Bentley v. Gardner, 45 App. Div. 216, 222. 94 Lyon v. Morgan, 143 N. Y. 505, 509; Rexford v. Bexford, 7 Lans. 6. Cf. Heilbrun v. Hammond, 13 Hun, 474- ^ Supra, p. 757; The Trustees of Union College v. Wheeler, 61 N. Y. 88. 96 Gary v. White, 52 N. Y. 138; De Lancey v. Stearns, 66 id. 157; Westbrook v. Gleason, 89 id. 641 ; Woodburn v. Chamberlin, 17 Barb. 446; Bank for Savings v. Frank, 45 N. Y. Super. Ct. (J. & S.) 404, 410; Constant v. Am. Bap. Assn., 53 id. 170; Weaver v. Edwards, 39 Hun, 233- Cf. Webster v. Van Steen- bergh, 46 Barb. 211; Schutt v. Large, 6 id. 373 ; Merritt v. North R. R. Co., 12 id. 605; Paul v. Paul, 23 N. Y. St. Rep. 370; Macauley v. Smith, 28 Abb. N. C. 276. 97 Westbrook v. Gleason, 79 N. Y. 23; Clark V. Mackin, 95 id. 346, 351; Purdy V. Huntington, 42 id. 334; Van Keuren v. Corkins, 66 id. yy ; Heilbrun v. Hammond, 13 Hun, 474, 480; Breed v. National Bank, 57 App. Div. 468, 473; Fries v N. Y. & Har- lem R. R. Co., id. 577. Cf. O'Brien V. Fleckstein, 86 id. 140. 762 Record of Conveyances. of negotiable paper.^^ A nominal consideration is not enough.®^ No one who has not given a new consideration at the time, or relinquished something, can, therefore, be considered a purchaser for value within the act.^ But where a deed expresses a valuable consideration, and acknowledges the payment thereof by the grantee, it affords prima facie evidence that he was a purchaser in good faith within the Recording Act, and no proof of actual pay- ment is necessary ;^ and the burden of proof to the contrary rests on a senior purchaser whose deed is unrecorded.^ Index. The indexing is no part of the record. The conveyance takes effect from the date of fihng.* But recording an instrument in the wrong book is not effectual as constructive notice.^ Acknowledgments. What constitutes due acknowledgment or proof, entitling a conveyance to be recorded under this section, is treated of under subsequent sections of this article.^ Conveyance when not Void Unless Recorded. Unless an instrument, operative as a conveyance of land, or of some interest therein is recorded, it is void under this section only in the instances specified therein,'' but not as between the parties,^ or as to those affected by notice.® Recording Acts do not usually affect the fundamental principles of equity.^" 98 Pickett V. Barron, 29 Barb. 505 ; * Mut. Life Ins. Co. v. Dake, 87 N. Merritt v. North R. R. Co., 12 id. Y. 257; Bedford v. Tupper, 30 Hun, 60s ; Harris v. Norton, 16 id. 264. 174. «® Ten Eyck v. Witbeck, 135 N. Y. ^ Abraham v. Mayer, 7 Misc. Rep. 40; s. c, 29 Abb. N. C. 314. 250. 1 Pickett V. Barron, 29 Barb. 505 ; ^ §§ 242-253. De Lancey v. Stearns, 66 N. Y. 157; '^ § 241, The Real Prop. Law; Breed Union Dime Sav. Inst. v. Duryea, 67 v. National Bank, 57 App. Div. 468, id. 84, 87; Young v. Guy, 87 id. 457, 473; Martindale v. Western N. Y. & and see cases under § 240, The Real P. R. R. Co., 45 id. 328; Felix Prop. Law ; Howells v. Hettrick, 160 v. Devlin, 90 id. 103. N. Y. 308; Wilcox V. Drought, 71 * Stuyvesant v. Hall, 2 Barb. Ch. App. Div. 402; O'Brien V. Fleckstein, 151; Raynor v. Wilson, 6 Hill, 469; 86 id. 140. Cf. Webster v. Van Steen- Whitlock v. Gould, 30 Misc. Rep. 521 ; bergh, 46 Barb. 211; Paul v. Paul, 23 Breed v. National Bank, 57 App. Div. N. Y. St. Rep. 370. 468, 473. 2 Ward V. Isbill, 73 Hun, 552. 9 Supra, p. 761. 3 Gratz V. Land & River Imp. Co., i" Duchess of Chandos v. Brown- 82 Fed. 381. low, 2 Ridgeway 428. Record of Conveyances. 763 Deeds Recorded by Whom. Deeds are presumed to be recorded by the grantee, and proof of record is presumptive evidence of delivery.^^ Record of Equitable Title. How far the record of an equitable title is operative as notice is often a question of difficulty.^^ It certainly is notice to a subsequent purchaser of the same title from the same grantor, but it is not notice to a purchaser of the legal title from the person who appears by the record to be the real ^^ Supra, p. 665. iSTarbell v. West, 86 N. Y. 280; 12 Dana v. Jones, 91 App. Div. 496. Matthews v. Damainville, 43 Misc. Rep. 546. 764 Acknowledgment or Proof of Conveyance. § 242. By whom conveyance must be acknowledged or proved. — Except as otherwise provided by this article, such acknowledgment can be made only by the person who executed the conveyance, and such proof can be made only by some other person, who was a witness of its execution, and at the same time subscribed his name to the convey- ance as a witness. Formerly i Revised Statutes, 756, section 4 : § 4. To entitle any conveyance hereafter made, to be recorded by any county clerk, it shall be acknowledged by the party or parties executing the same, or shall be proved by a subscribing witness thereto, before, etc., etc. * ^ *^* Early Statutes. The earlier statutes of this State on the subject of acknowledgments of deeds are collated in an appendix to vol- ume 3, 1st edition, of the Revised Statutes. The colonial laws on the same subject are given in this writer's " History of the Law of Real Property. in New York." ^^ Recording OfScers Prohibited. A recording officer was prohibited by the Revised Statutes from recording any conveyance unless the same was acknowledged.^® The Penal Code now makes it a mis- demeanor to record a conveyance which does not contain a cer- tificate of its proof or acknowledgment.-''' Acknowledgments and Proof. The acknowledgment must be made by the person executing the conveyance,^* or else the deed must be proved by a subscribing witness other than the grantor.'^ An acknowledgment is not a judicial act, and the officer taking it is not debarred from acting by the fact that he is related to the person making the acknowledgment.^" The history of the law of proving deeds is referred to in many cases.^-' i*The balance of i R. S. 756, § 4, Campbell, 121 N. Y. 353; McKay v. is set out verbatim under §§ 248, 249, Lasher, id. 477. The Real Prop. Law, and need not i* jj^ supra. be repeated here, i R. S. 756, § 4, 20Lyn(.jj y Livingston, 6 N. Y. is repealed by chap. 547, Laws of 422 ; Remington Paper Co. v. 1896. O'Dougherty, 81 id. 474, 483. And 15 Baker, Voorhis & Co., A. D. he must not be a party. Armstrong 1895. See index "Acknowledgments." v. Combs, 15 App. Div. 246. 16 1 R. S. 762, § 34. 21 Van Cortlandt v. Tozer. 17 IT Penal Code, § 164. Wend. 338 ; aflfd., 20 id. 423 ; Lynch 18 Lovett V. The Steam, etc., Asso- v. Livingston, 8 Barb. 463. ciation, 6 Paige, 54, 60; Irving v. Acknowledgment or Proof of Conveyance. 765 Deed by Attorney. When a deed is executed by an attorney he is the party executing it, and may make the acknowledgment.^ Deed of Public OiEcer. An official instrument by a referee or judge proves itself without acknowledgment. In Chamberlain v. Tay- lor, a deed was executed by a county judge of the county in which the land was sold, under his hand and seal, pursuant to chapter 298, Laws of 1850, but it was followed by no certificate of acknowledg- ment. It was held that though the deed was followed by no cer- tificate of acknowledgment it was entitled to be recorded.^^ Subscribing Witness. When the conveyance is proved by a sub- scribing witness, his residence must be stated in the certificate.^* Acknowledgment by Corporation. The requirements of an acknowl- edgment by a corporation are now for the first time set forth in this act.^ As no form of a certificate of acknowledgment is con- tained, in this or any other law of the State, when such acknowledg- ment is that of a natural person, the form prescribed for a corporate acknowledgment is not without interest in all cases. 22 Lovett V. Steam Saw Associa- 575 ; Chamberlain v. Taylor, 36 Hun, tion, 6 Paige, 54; Johnson v. Bush, 3 24, 38. Barb. Ch. 207. 24 § 253, The Real Prop. Law. 23 King V. Post, 12 N. Y. St. Rep. 25 infra, § 258, The Real Prop. Law. 766 Record of Conveyance Acknowledged or Proved. § 243. Recording of conveyances heretofore acknowledged or proved. — A conveyance of real property, within the state, heretofore executed, and heretofore acknowledged or proved, and certified, so as to be entitled to be read in evidence, or recorded, under the laws in force at the tin?e when so acknowledged or proved, but which has not been recorded is entitled to be read in evidence, and recorded in the same manner, and with the like effect, as if this chapter had not been passed. If heretofore executed, but not proved or acknowledged, it may be proved or acknowledged in the same manner as conveyances here- after executed and with like effect. Formerly i Revised Statutes, 760, sections 22, 23 : I 22. Every conveyance of any real estate within this state, heretofore executed, and heretofore acknowledged or proved and certified, in such manner as to be entitled to be read in evidence, or recorded, under the laws now in force, but which has not been so recorded, shall be entitled to be read in evidence, in all courts, and to be recorded in the proper office, in the same manner, and with the like effect, as if this Chapter had not been passed.28 § 23. Every such conveyance, not already proved or acknowledged, may be proved or acknowledged, in the same manner as conveyances hereafter executed, and when so proved, acknowledged or recorded, shall have the like effect.2T Note on Section 243, Supra. Similar provisions were contained in an earlier law of 1813.^ Conveyances, how made Evidence. The Code of Civil Procedure also regulates the manner in which deeds become evidential or prove themselves. "A conveyance acknowledged or proved, and certified in the manner prescribed by law to entitle it to be recorded in the county where it is offered, is evidence without further proof thereof." So a record of a conveyance, or a transcript thereof duly certified, is evidence. But a certificate of acknowledgment, or a transcript thereof, is not conclusive, and the effect thereof may be contested and rebutted. If the conveyance is proved by an interested or incompetent witness it cannot be received in evi- dence until otherwise proved.^^ 26 Repealed, chap. 547, Laws of ^8 j r l 369. 1896. ^§§ 935, 936; McKay v. Lasher, 27 Repealed, chap. 547, Laws of 121 N. Y. 477; Mut. Life Ins. Co. v. 1896. Corey, 135 id. 326. Record of Contracts and Powers. 767 § 244. Recording executory contracts and powers of attorney. — An executory contract for the sale or purchase of real property, or an instrument containing a power to convey real property, as the agent or attorney for the owner of the property, acknowledged or proved, and certified, in the manner to entitle a conveyance to be recorded, may be recorded by the recording officer of any county in which any of the real property to which it relates is situated. Formerly i Revised Statutes, 762, section 39: § 39. The preceding section sliall not be construed to extend to a letter of attorney, or other instrument containing a power to convey lands as agent or attorney for the owner of such lands ; but every such letter or instrument, and every executory contract for the sale or purchase of lands, when proved or acknowledged, in the manner prescribed • in this Chapter, may be recorded in the clerk's office of any county, in which any real estate, to which such power or contract relates, may be situated ; and when so proved or acknowledged, and the record thereof when recorded, or the transcript of such record, may be read in evidence, in the same manner, and with the like effect, as a conveyance recorded in such county.^" Executory Contract of Sale. The record of an executory contract of sale of land is ineffectual, except to preserve evidence ; it is not constructive notice to purchasers, and an action cannot be main- tained to cancel it as a cloud on the title,^^ except by virtue of a statute .^^ Mechanics' Liens. Chapter 49 of the General Laws, in relation to liens, requires executory contracts, in reference to certain fix- tures, to be recorded, in order to be valid against mortgagees of the realty.^* Power. To enable a power of attorney, or a power to convey, to be recorded, it must be acknowledged in due form of law.^* Power of Attorney. A duly certified transcript of a recorded power of attorney is competent as evidence.^^ 30 Repealed, chap. 547, Laws of § 276, The Real Prop. Law, which 1896. see. 31 Boyd V. Schlesinger, S9 N. Y. *3 Chap. 418, Laws of 1897 ; Hirsch 301 ; Washburn v. Burnham, 63 id. v. Graves Elevator Co., 24 Misc. Rep. 132. Cf. Beman v. Douglas, i App. 472. Div. 169; Drew v. Duncan, 11 How. 34 pjoifHo v. Faber, 56 App. Div. Pr. 279. 241. 32 Chap," 530, Laws of 1880, now 35 Lgrche v. Brasher, 104 N. Y. 157. 768 Record of Letters Patent. § 245. Recording of letters patent — Letters patent, issued un- der the great seal of the state, granting real property, may be recorded in the county where such property is situated, in the same manner and with like effect, as a conveyance duly acknowledged or proved and certified so as to entitle it to be recorded. Formerly chapter no, Laws of 1845, section i: § I. All letters patent issued under the great seal of this state, granting land to any person or persons, in addition to the record thereof made in the office of the secretary of state, may be recorded in the county where the lands granted are situated, in the same manner and with the like effect as any deed regularly acknowledged or proved before an officer authorized by law to take the proof and acknowledgment of deeds, whenever the pat- entee or owner of such lands shall request the same to be so recorded.^s " Letters Patent." While New York was a province^^ or colony of England, grants of Crown land were always made by letters patent, or open letters, " literae patentes, so called," says Blackstone, " because they were not sealed up, but exposed to open view with the great seal pendant at the bottom." ^^ Letters patent were assur- ances by matter of record, and as such were public records. Black- stone describes with great particularity the mode in which the King's letters patent were granted.^^ On the independence of New York, the ungranted Crown lands vested in the State, and con- tinued to be granted by letters patent under the great seal.*" They were usually issued pursuant to an act of the Legislature directed to the commissioners of the land office. Construction of Letters Patent. Blackstone laid it down that a grant by the King was to be construed most beneficially for the King.*^ But, certainly, patents must be open to two intents before such a rule of construction can be applied,*^ and when the grant 38 Repealed, chap. 547, Laws of of Real Prop, in N. Y., pp. 10, 16, 1896. 46. 184. 37 New York was a province of the 39 2 Black. Comm. 347, 348 ; N. Y. Crown, not a " colony." The officials, Cent. R. R. Co. v. Brockway Brick attorney-generals, etc., all styled it Co., 10 App. Div. 387, 389. "province." See Bradf. N. Y. Laws 4o n. y. Cent. R. R. Co. v. Brock- of 1694. way Brick Co., 10 App. Div. 387, 158 382 Black. Comm. 346. The letters N. Y. 470. patent to the Duke of York, in 1664, *i 2 Black. Comm. 347. for the entire territory, now in this ** See discussion in Forsy'the's Cas. State, are at Albany. See Hist. Law & Ops. 175, 176. Record of Letters Patent. 769 is for a valuable consideration the patents may be construed most favorable for the patentee.*^ More just rules of construction are now applied, than at common law, to the construction of letters patent.** Recording. This section refers to patents for lands issued under the great seal of the State.*^ It is to be read in connection with the following section of this act. If the original letters patent are recorded in the county where the real property is situated, the record is operative as notice, as is the record of any other conveyance. *3 Sir John Moline's Case, lo Rep. Mayor, 93 id. 129, 147 ; Killam v. State 65. of New York, 64 App. Div. 243. « People V. N. Y. & Staten Island 45 n. Y. C. & H. R. R. R. Co. v. Ferry Co., 68 N. Y. 71 ; Langdon v. Brockway Brick Co., 158 N. Y. 470. 49 770 Record of Copies of State Records. § 246. Recording copies of instruments which are in secretary of state's office — A copy of an instrument affecting real property, within the state, recorded or filed in the office of the secretary of state, certified in the manner required to entitle the same to be read in evidence, may be recorded with such certificate, in the office of any recording officer of the state. Formerly chapter 295, Laws of 1839, section 5: § 5. A copy of any deed, conveyance or other instrument in writing relat- ing to, or in any manner affecting the title to any real estate which is or may be recorded or filed in the oiifice of the secretary of state, upon being certified by the said secretary in the manner required by law, to entitle the same to be read in evidence, may be recorded in the office of the clerk of any county in this state or in the office of the register of deeds in the city of New York with the secretary's certificate; and such record and a duly certified copy thereof, may be read in evidence in the same manner and with :he like eflfect, as the record of a conveyance of real estate situate in such county originally recorded in the said clerk's office or in the office of the said register.*'^ Holland Land Company. This section is taken from the foregoing act. The residue of the act of 1839 refers to the Holland Land Company.*'^ Secretary's Office. A very instructive and able account of the office of the secretary of this State, and of the effect of his certificate as evidence, is contained in an opinion of the Court of Appeals in i899.*8 Letters Patent. Chapter 517, Laws of 1896, provides for the re- cording of all letters patent in the office of the Secretary of State; and the same when certified by him under this section may be recorded throughout the State or read in evidence.*^ When Deeds May be Read in Evidence. The Code of Civil Pro- cedure now regulates the admission of deeds in evidence. Sections 933 and 935 thereof are as follows : " § 933. A copy of a paper filed, kept, entered, or recorded, pursuant to law, in a public office of the State, the officer having charge of which has, pursuant to law an official seal * * * is evidence, as if the original was « Repealed, chap. S47, Laws of *8 n. Y. C. & H. R. R. R. Co. v. 1896. Brockway Brick Co., 158 N. Y. 470. «CA § 259, The Real Prop. Law. "9 N. Y. C. & H. R. R. R. Co. v. Erockway Brick Co., 158 N. Y. 470. Record of Copies of State Records. 771 produced. But, to entitle it to be used in evidence, it must be certified * * * by the officer having the custody of the original.'^o * * * " § 935- A conveyance, acknowledged or proved, and certified in the' man- ner prescribed by law, to entitle it to be recorded in the county where it is offered, is evidence, without further proof thereof. Except as otherwise specially prescribed by law, the record of a conveyance, duly recorded within the State, or a transcript thereof, duly certified, is evidence, with like effect as the original conveyance." 50 See this section set out in full under next section of this act, p 772, infra. 772 Recorb of Copies. § 247. Certified copies may be recorded — A copy of a record, or of any recorded instrument, certified or authenti- cated so as to be entitled to be read in evidence, may be again recorded in any office where the original would be entitled to be recorded. Such record has the same effect as if the original were so recorded. A copy of a convey- ance or mortgage affecting separate parcels of real prop- erty situated in different counties, or of the record of such conveyance or mortgage in one of such counties, certified or authenticated so as to be entitled to be read in evidence, may be recorded in any county in which any such parcel is situated, with the same effect as if the original instrument authenticated as required by sec- tion two hundred and fifty-nine of this chapter were so recorded. Formerly chapter 210, Laws of 1843, section s,5i as amended chapter 539, Laws of 1887. § S. The copy of any record, of any recorded deed or instrument, attested and authenticated in such manner as would by law entitle it to be read in evidence, may be again recorded in any office wherein the original would be entitled to be recorded, and such record shall have the same effect as if the original were so recorded. Certification Entitling Paper to be Read in Evidence. As stated under the next preceding section of this act, the Code of Civil Procedure regulates admission of deeds of conveyance in' evidence. Section 933 thereof is as follows: " § 933- A copy of a paper iiled, kept, entered, or recorded, pursuant to law, in a public office of the State, the officer having charge of which has, pursuant to law an official seal; or with the clerk of a court of the State; or with the clerk or secretary of either house of the Legislature, or of any other public body or public board, created by authority of a law of the State, and having, pursuant to law, a seal; or a transcript from a record, kept, pursuant to law, in such a public office, or by such a clerk or secretary, is evidence, as if the original was produced. But, to entitle it to be used in evidence, it must be certified by the clerk of the court, under his hand and the seal of the court, or by the officer having the custody of the original, or his deputy, or clerk, appointed pursuant to law, under his official seal, and the hand of the person certifying; or by the presiding officer, secretary, or clerk of the public body or board, appointed pursuant to law, under his hand, and, except where it is certified by the clerk or secretary of either house of the Legis- lature, under the official seal of the body or board." 61 Repealed, chap. 547, Laws of 1896. Acknowledgments and Proofs within the State. 773 § 248. Acknowledgments and proofs within the state. — The acknowledgment or proof of a conveyance of real prop- erty within the state may be made at any place within the state, before a justice of the supreme court; or within the district wherein such officer is authorized to perform official duties, before a judge, clerk, deputy clerk, or special deputy clerk of a court, a notary public, or the mayor or recorder of a city, a justice of the peace, surrogate, special surrogate, special county judge, or commissioner of deeds. Formerly i Revised Statutes, 756, section 4, subdivision i :52 I. If acknowledged or proved within this state; the chancellor, justices of the supreme court, circuit judges, supreme court commissioners, judges of county courts, mayors and recorders of cities, or commissioners of deeds; but no county judge, or commissioner of deeds for a county or city, shall take any such proof or acknowledgment, out of the city or county, for which he was appointed : ^^ Statutes Concerning Notaries Public. The statutes regarding notaries public are numerous, but need not be referred to here at length.^* In one aspect, most of them amend the Revised Statutes, or are auxiliaries to the foregoing section of the same. In 1859 notaries were empowered to administer oaths and " to take the proof and acknowledgment of deeds, mortgages and any other papers for use or record in this State," in the same manner as commissioners of deeds.^^ Subsequently notaries were empowered to act in certain adjoining counties by acts^* now consolidated in " The Executive Law." ^^ A like provision was embodied in the New York City Consolidation Act of 1882.^® Before such acts a notary could not take acknowledgments out of the county of his original jurisdiction.^® Numerous special acts of the Legislature 52 See for the balance of this sec- ^^ Laws of 1873, chap. 807 ; Laws of tion anterior to subd. i, p. 764, 1875, chaps. 105, 458; Laws of 1880, supra. It provides, in substance, that chap. 254; Laws of 1883, chap. 140: instruments shall be acknowledged be- Laws of 1888, chap. 542; Laws of fore, etc., etc. 1884, chap. 270; Laws of i88s, chap. 53 Repealed, chap. 547, Laws of 61. Cf. Laws of 1872, chap. 703. 1896. ST Laws of 1892, chap. 683, § 82, as 54 1 R. S. 98; id. 102, § 14; 2 id. amended Laws 1893, chap. 248. See 283, § 44. chap. 128, Laws of 1903. 55 Laws of 1859, chap. 360; Laws of 58 Laws of 1882, chap. 410, §§ 1712, 1863, chap. 508; People v. Hascall, 1713. 18 How. Pr. 118. 59Utica, etc., R. R. Co. v. Stewart, 774 Acknowledgments and Proofs within the State. confirm the acts of notaries^" and those of justices of the peace. ^^ The " Executive Law " now consolidates the statutes regarding notaries public, their appointment, powers, duties and fees.^^ Officers Entitled to Take Acknowledgments. The authority of officers, not being magistrates or judges of courts of record, to take acknowledgments is ex virtute officii, and wholly statutory. Commissioners of Deeds. The Executive Law regulates the ap- pointment and powers of Commissioners of Deeds, within the State.e^ Officer Cannot Act Out of Locus of Jurisdiction. A local officer, author- ized to take acknowledgments or prove deeds, cannot act out of the place specified for his jurisdiction.^* But an officer is presumed to act within the limits of his jurisdiction.^^ Where an officer of one county is authorized to act in another, a jurat need not set forth the notary's compliance with the law.^ An acknowl- edgment is not a judicial act, and the officer taking it is not dis- qualified by ties of consanguinity, or because he is attorney for the assignor f but otherwise if he is a party to the conveyance."* A. recent act validates the record of a certain instruments when ac- knowledgment was taken by a notary in an adjoining county, and a certificate of the notary's authority is not appended.''* Forms. Examples of the form of certificate of acknowledgment are given under section 255 of this act. 33 How. Pr. 312. Cf. Lambert v. The 683, Laws of 1892, amended chap. People, 76 N. Y. 220, 231; Schiff v. 583, Laws of 1898, chap. 112, Laws of Leipziger Bank, 65 App. Div. 33- 1899. 60 Laws of i860, chap. 443 ; Laws of ** Jackson v. Humphreys, i Johns. 1861, chap. 246; Laws of 1863, chap. 498; In re Henschal, 109 Fed. 861, 508; Laws of 1881, chaps. 44, 553; 864. Cf. Schiff v. Leipziger Bank, 65 Laws of 1882, chap. 16; Laws of 1883, App. Div. 33. See chap. 235, Laws chaps. 29, 230; Laws of 1884, chap, of 1904. 304 ; Laws of 1885, chap. 63 ; Laws 65 Carpenter v. Dexter, 8 Wall, of 1886, chap. 448; and see particu- 513; People v. Snyder, 41 N. Y. 397. larly chap. 71, Laws of 1900, and ^ Estate of King, 2 Civ. Proc. Rep. chap. 86, Laws of 1902; chap. 628, 71. Laws of 1903; chap. 235, Laws of «'? Lynch v. Livingston, 6 N. Y. igo4. 422; Remington Paper Co. v. 61 Laws of 1886, chaps. 210, 461; O'Dougherty, 81 id. 474, 483; Brown Laws of 1893, chap. 277. v. Parker, 97 Fed. 446. Cf. chap. 62 Chap. 683, Laws of 1892, chap. 235, Laws of 1904. 9 of General Laws, as amended by ** Armstrong v. Combs, 15 App. chap. 248, Laws of 1893. Div. 246. 63 Chap. IX, General Laws, chap. «» Chap. 235, Laws of 1904. Acknowledgments and Proofs in other States. 775 § 249. Acknowledgments and proofs in other states — The acknowledgment or proof of a conveyance of real prop- erty, within the state, may be made without the state, but within the United States, before either of the follow- ing ofificers acting within his jurisdiction, or of the court to which he belongs: 1. A judge of the supreme court, of the circuit court of appeals, of the circuit court, or of the district court of the United States. 2. A judge of the supreme, superior, or circuit court of a state. 3. A mayor of a city. 4. A commissioner appointed for the purpose by the governor of the state. 5. Any ofificer of the state in which the acknowledg- ment is taken authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein, of which the certificate required by section two hundred and sixty-two shall be evidence. Formerly i Revised Statutes, 756, section 4: § 4,™ subd. 2. * * * If acknowledged or proved out of this state, and within the United States; the chief justice and associate justices of the supreme court of the United States, district judges of the United States, the judges or justices of the supreme, superior or circuit court, of any state or territory, within the United States, and the chief judge, or any associate judge, of the circuit court of the United States, in the district of Columbia; but no proof or acknowledgment, taken by any such officer, shall entitle a conveyance to be recorded, unless taken within some place or territory, to which the jurisdiction of the court to which he belongs, shall extend.'^i Subdivision s of section 249, supra, was amended to read as above by chapter 419, Laws of igoz-"^^ The reference to section 262 is a blunder and should be to section 261. ™The first part of this section is under § 248, The Real Prop. Law, set out under § 242, The Real Prop. p. 773. The entire text of i R. S. Law, p. 764, supra. It provides that 756, § 4, appears on pp. 764, 773, 775 to entitle any conveyance hereafter of this work. made to be recorded, it shall be ac- '^^ Repealed, chap. 547, Laws of knowledged or proved before any one 1896. of the following ofificers. Then fol- ''2 See the original Appendix I, lows subdivision i, also set out, supra, infra. 776 Acknowledgments and Proofs in other States. Earlier Laws. The foregoing provision of the Revised Statutes was, in 1829, transferred from the Revised Laws of 1813.^^ Mayors of cities/* certain officers of other States of the Union/^ and com- missioners of the State of New York, were subsequently em- powered to take acknowledgments and proof of deeds. ^® So certain persons in Canada." Certificate of Secretary of State. For purposes of recording same, the certificate of a commissioner of deeds for the State of New York must be accompanied by a certificate of the Secretary of State of New York, attesting the commissioner's office and the genuineness of his signature;^* and such is the present law.''^ The commissioner's seal of office must be attached to his certificate, which must specify the day on which it was taken, and also the city or town.*" Dominion of Canada. An act of 1875 repealed the authority*^ to appoint commissioners of deeds in the Dominion of Canada.*^ But the " Executive Law " authorizes the Governor to appoint ten such commissioners in a city of any foreign country .^^ Authentication; Knowledge. Under the former law, as at present,*** when the acknowledgment was taken in Canada, or without the State but within the Union, it was provided that the officer must know or have satisfactory evidence that the person acknowledg- ■'3 Chap. 44, Laws of 1788; i R. L. ''8 Laws of 1850, chap. 270, as 269. amd. Laws of 1857, chap. 788; ''* Chap. 222, Laws of 1829 ; chap. Laws of 1859, chap. 222 ; Laws of 109, Laws of 1845; chap. 80, Laws of 1876, chap. 58, § i; Laws of 1880, 1883. chap. IIS. TB Chap. 19s, § I, Laws of 1848 ; 79 [„fra, § 260, The Real Prop. Law. chap. 208, Laws of 1892; chap. 123, ^^ Laws of 1850, chap. 270; Laws of Laws of 1893. 1876, chap. 58; Laws of 1880, chap. ■^^Chap. 290, Laws of 1840; chap. 115; § 257, The Real Prop. Law. 270, Laws of 1850, as amd. chap. 788, 81 Laws of 1857, chap. 788; Laws of Laws of 1837; chap. 222, Laws of 1859, chap. 222. 1859 ; chap. s8, § i, Laws of 1876, and 82 Laws of 1875, chap. 136 ; chap, chap. 683, § 87, Laws of 1892. 683, Laws of 1892. Cf. § 250, infra. T' Chap. 222, Laws of 1829 ; chap. 83 § 87^ chap. 683, Laws of 1892. 208, Laws of 1870; chap. 123, Laws 84 § 252, The Real Prop. Law. of 1893, now § 250, The Real Prop. Law. Acknowledgments and Proofs in other States. 777 ing the deed was the person described in and who executed the same.^^ And in order to entitle a deed so acknowledged to be recorded, it must have been duly authenticated.**^ Forms. For forms of certificate of acknowledgment, see under section 255 of this act.*^ ^ I R. S. 7s8, § 9 ; Laws of 1892, 61 ; Laws of 1867, chap. 557 ; Laws of chap. 208; Laws of 1895, chap. 148; 1895, chap. 123; Re Wilcox's Estate, Laws of 1870, chap. 208; and see 21 N. Y. Supp. 780. Cf. § 260, The § 252, The Real Prop. Law. Real Prop. Law. ^ Laws of 1848, chap. 195 ; Laws of ^'^ Infra, p. 794. 1853, chap. 303; Laws of 1856, chap. 778 Acknowledgments and Proofs in the Provinces. § 249a. Acknowledgment of conveyance in certain places; certificate of acknowledgment. — If the party or parties executing such conveyance shall be or reside in Porto Rico, the Phihppine islands, Cuba, or in any other place over which the United States of America at the time has or exercises sovereignty, control, or a protectorate, the same may be acknowledged or proved before: 1. A judge of a court of record thereof, acting within his jurisdiction; 2. A mayor or other chief officer of a city, acting in such city; 3. A commissioner appointed for the purpose by the governor of this state and acting within his jurisdiction; 4. An officer of the United States regular army or volun- teer service of the rank of captain or higher, or an officer of the United States navy of the rank of lieutenant or higher, while on duty at the place where such party or parties are or reside. The certificate of an acknowledgment taken before any of the officers mentioned in subdivision one, two or three of this section, shall have attached thereto the seal of the court or officer if he have a seal, and if such officer have no seal, then a statement to that effect. The certificate of an acknowledgment taken before an officer of the army or navy mentioned in subdivision four of this section, shall state his rank, the name of the city, or other pohtical division where taken, and the fact that he is on duty there, and shall be authenticated by the secretary of war or the secretary of the navy, as the case may be, of the United States. Conuneiit. This section was added to this act, chapter 46 of the General Laws, by chapter 84 of the Laws of 1901, to meet the exigencies of the new possessions of the United States. Fonns. For common forms of certificate of acknowledgments, see under section 255 of this act. Acknowledgments and Proofs in Foreign Countries. 779 § 250. Acknowledgments and proofs in foreign countries. — The acknowledgment and proof of a conveyance of real property within the state, may be made without the United States before either of the following officers: 1. An ambassador, a minister plenipotentiary, minister extraordinary, minister resident, or charge des affairs of the United States, residing and accredited within the country. 2. A consul-general, vice-consul general, deputy consul- general, vice-consul or deputy-consul, a consular or vice- consular agent, a consul or commercial or vice-com- mercial agent of the United States residing within the country; or a secretary of legation at the post, port, place or within the limits of his legation. ^^ 3. A commissioner appointed for the purpose by the governor, and acting within his own jurisdiction. 4. A person specially authorized for that purpose ijy a commission, under the seal of the supreme court, issued to a reputable person, residing in or going to the country where the acknowledgment or proof is so to be taken. 5. If within the dominion of Canada, it may also be made before any judge of a court of record; or before any officer of such dominion authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein. 6. If within the United Kingdom of Great Britain and /■ Ireland or the dominions thereunto belonging, it may^ also be made before the mayor, provost or other chief/, magistrate of a city or town therein, under his hand and tha seal of such city or town. ' 7. All acts of ambassadors, ministers plenipotentiary, ministers extraordinary, minister resident charge d' affaires, or secretary of legation, in taking the acknowledgment or proof of a conveyance of real property within the state, performed before the time when this act takes effect, are hereby confirmed, provided that the certificate of acknowl- edgment or proof is in the form required by the laws of this state. 8. If within the states comprising the empire of Ger- many it may also be made before a judge of a court of 88 As amd. chap. 528, Laws of 1904; became a law April 29, 1904, to take efifect immediately. 780 Acknowledgments and Proofs in Foreign Countries. record under the seal of such court or before a notary public under the seal of his office and the seal of the city or town in which the notary resides.^* Formerly i Revised Statutes, 757, sections 5, 6 and 7: § 5. If the party or parties executing such conveyance, shall be, or reside, in any state or kingdom in Europe, or in North, or South America, the same may be acknowledged or proved before any minister, plenipotentiary, or any minister extraordinary, or any charge des affaires of the United States, resident and accredited within such state or kingdom. If such parties be or reside in France, such conveyance may be acknowledged or proved before the consul of the United States, appointed to reside at Paris; and if such parties be or reside in Russia, such conveyance may be acknowledged or proved before the consul of the United States appointed to reside at St. Petersburgh.90 § 6. If the party to such conveyance be, or reside, within the United King- dom of Great Britain and Ireland, or the dominions thereunto belonging, the same may be acknowledged or proved before the mayor of the city of London, the mayor or chief magistrate of the city of Dublin, or the provost or chief magistrate of the city of Edinburgh, or before the mayor or chief magistrate of Liverpool, or before the consul of the United States appointed to reside at London.91 § 7. Such proof or acknowledgment, duly certified under the hand, and seal of office, of such consuls, or of the said mayors or chief magistrates respectively, or of such minister or charge des affaires, shall have the like force and validity, as if the same were taken, before a justice of the supreme court of this state.^^ Comment. This section"' of The Real Property Law** has been several times amended, since its passage,**" so as to read as it now stands in this edition. Subdivision 6 was first amended by chapter 611 of the Laws of 1901, so as to enable a foreign notary to take the acknowledgment. But this authority was repealed by chapter 98, Laws of 1903. Subdivision 7 was added by chapter 542, Laws of 1899, and confirmed by chapter 6n, Laws of 1901. Subdivision 8 was added by chapter 690, Laws of 1904, to take effect September I, 1904. Some of the amendments seem very carelessly drawn. 89 As amd. chap. 690, Laws of 1904. '9* Chapter 46 of the General Laws, ^Cf. Laws of 1816, p. 118; chap, enacted May 12, 1896. 793, Laws of 1895. *^ Chap. 54/, Laws of 1899 ; chap. »i Cf. I K. & R. 370, § 3; I R. L. of ^, Laws of 1901 ; chap. 98, Laws of 1813, 370, § 3 ; Laws of 1817, p. 58. 1903 (and see Jordan v. Underbill, gi 92 I R. S. 7S7, §§ S, 6, 7, as amd.; App. Div. 124, 130); chap. 528, Laws repealed, chap. S47, Laws of 1896. of 1904; chap. 690, Laws of 1904. 93 See Appendix I, infra, § 250. Acknowledgments and Proofs in Foreign Countries. 781 Confirmation. All acknowledgments of ambassadors, ministers, etc., of the United States, if in sufificient form prior to the passage of The Real Property Law, it will be observed, are now confirmed.®^ Acknowledgments and Proofs in Foreign Countries. In 1 77 1 provision was made for the acknowledgment of deeds in the possessions of Great Britain out of this colony.^^ A like provision was incorpo- rated in the laws of the State in 1801,'* and re-enacted in the re- vision of 1813,^* and finally amplified in the Revised Statutes.^ The later acts extended to places other than those under British dominion. An act of 1829 provided for execution in any foreign country.^ From time to time the scope of these enactments has been enlarged^ until the present section embodying the final law. Commissioners of Deeds. The " Executive Law " authorizes the governor to appoint commissioners of deeds to act in foreign countries.* Forms. For the common forms of certificates of acknowledgment see text under section 255 of this act.^ 8« § 250, supra; chap. 542, Laws of pealed) ; Laws of 1870, chap. 208 1899; chap. 611, Laws of igoi. (hereby repealed); Laws of 1875, 9T Van Schaack, 612, 765. chap. 136 (repealed. Laws of 1892, 98 I K. & R. 479. chap. 683) ; Laws of 1883, chap. 80 99 1 R. S. 370, § 3. (hereby repealed) ; Laws of 1883, ^ Supra, p. 780. chap. 233 (repealed, Laws of 1892, 2 Chap. 222, Laws of 1829. chap. 683) ; Laws of 1888, chap. 246 3 Laws of 1847, chap. 170; Laws of (hereby repealed); Laws of 1892, 1854, chap. 206 (repealed, Laws of chap. 683 (Executive Law) ; Laws of 1880, chap. 24s) ; Laws of 1858, chap. 1893, chap. 123 (hereby repealed) ; 308 (repealed. Laws of 1875, chap. Laws of 1893, chap. 248 (Executive 136) ; Laws of 1862, chap. 283 (re- Law) ; Laws of 1895, chap. 793. pealed. Laws of 1875, chap. 136) ; * chap. 683, Laws of 1892, being Laws of 1862, chap. 471 (repealed, chap. 9 of the General Laws, as Laws of 1877, chap. 417) ; Laws of amd. by chap. 248, Laws of 1893. 1863, chap. 246 (hereby repealed) ; 6 i„fra, p. 794, and § 258, for form Laws of 1865, chap. 421 (hereby re- for corporation. 782 Acknowledgments and Proofs by Married Women. § 251. Acknowledgments and proofs by married woman. — The acknowledgment or proof of a conveyance oi real prop- erty, within the state, or of any other written instrument, may be made by a married woman the same as if un- married. Formerly i Revised Statutes, 758, sections lo, 11: § 10. The acknowledgment of a married woman residing within this state, to a conveyance purporting to be executed by her, shall not be taken, unless in addition to the requisites contained in the preceding section, she acknowl- edge, on a private examination, apart from her husband, that she executed such conveyance, freely, and without any fear or compulsion of her husband; nor shall any estate of any such married woman, pass, by any conveyance not so acknowledged.* § II. When any married woman, not residing in this state, shall join with her husband, in any conveyance of any real estate, situated within tWs state, the conveyance shall have the same effect as if she were sole; and the acknowledgment or proof, of the execution of such conveyance by her, may be the same as if she were sole.'' History of Separate Acknowledgments by Married Women. The his- torical remarks made under section 183 of this act,* touching deeds to bar dower, are applicable generally to any conveyance by a mar- ried woman. As early as 1683 by an act of the New York As- sembly, it was provided that estates of feme covert could be con- veyed only by deed, acknowledged in some court of record, " she being secretly examined if she doth it freely." ^ This act was of brief duration, being disallowed by the Lord Proprietor, the Duke of York.^"* But thereafter, by early custom of New York, a feme covert could, in conjunction with the husband, convey by deed without separate acknowledgment.^* At common law a feme covert could convey only by levying a fine or suffering a common recov- * Amended, as stated below, and as Johns. 89, 113; Humbert v. Trinity amended repealed, chap. 547, Laws of Church, 24 Wend. 587, 625 ; Albany i8g6. Fire Ins. Co. v. Bay, 4 N. Y. i, 23. ■^ Repealed, chap. S47i Laws of 1* Albany Fire Ins. Co. v. Bay, 4 1896. N. Y. I, 24; Doc. relating to Colonial 8 Supra, pp. 595, 596. Hist, of N. Y. HI, 357, 370. »! N. Y. Col. Laws (ed. of 1894), "Albany Fire Ins. Co. v. Bay, 4 p. Ill; Constantine v. Van Winkle, N. Y. at p. 31; Van Winkle v. Con- ic N. Y. 422, 6 Hill, 177; Jackson stantine, 10 id. 422; Bool v. Mix, 17 ex dem. Woodruflf v. Gilchrist, 15 Wend. 128. Acknowledgments and Proofs by Married Women. 783 ery,^^ and these judicial acts always required her separate acknowl- edgment and the consent of the husband.^^ The origin of the custom in New York has been much disputed. In London and in Winchester, England, a custom to convey or bar dower by deed separately acknowledged by feme covert certainly existed.^* This writer has a distinct recollection of reading a very old English case (as he thinks in the Year Books, but which he cannot now cite) giving effect to this custom to bar a widow's claim of dower. Indeed, in most, if not all the British plantations, a similar custom prevailed.^^ Chancellor Jones, of New York, stated that, in New York, a deed attested by a separate acknowledgment of the wife, before a judge of a court of record, was regarded as the equivalent of a fine ;^^ and such was probably the mode adopted by the better conveyancers even prior to 1771, whenever the more tedious methods of fines or recoveries were not employed." In 1771 the custom of New York was formally recognized by the Legislature, and prior conveyances in conformity with it were declared valid.** But this act also provided that thereafter " no conveyance of a feme covert should pass by deed without a previous acknowledg- ment made by her apart from her husband."*^ From time to time such statute was thereafter re-enacted in New York.^° Finally the abolition of fines and recoveries^* caused deeds separately acknowledged to become the only mode by which a feme covert might convey lands in New York. The statute appHed to con- tracts to convey as well as to conveyances,^^ but not to the execu- tion of powers of appointment under a trust.^ 1^2 Black. Comm. 351; Constantine 1^2 J. & V. 84. V. Van Winkle, 6 Hill, 177; Jackson i^Van Schaack, N. Y. Laws, 611, ex dem. v. Hollaway, 7 Johns. 81, 86; 765; N. Y. Col. Laws (ed. of 1894), Whitbeck v. Cook, 15 Johns. 545 ; 2 V, 202, 534. J. & v., N. Y. Laws, 84; Bradley v. "Van Schaack, 611, 765; N. Y. Walker, 138 N. Y. 291, 297. Col. Laws (ed. of 1894), V, 202, 534. 13 Shep. Touch. 7; Albany Fire Ins. 20 2 J. & V. 266; i K. & R. 478, § 2; Co. V. Bay, 4 N. Y. 13, 31. i R. L. 369; i R. S. 758, § 10; supra, 1* Park. Dower, 195 ; i Cruise, p. 782. Fines, S3, 54, 97; ^«Pra, P- 595, § 183, 21 2 R. S. 343, § 24. The Real Prop. Law. 22Knowles v. McCamley, 10 Paige, 15 2 Black. Comm. 361 ; Stokes, 342 ; Bradley v. Walker, 138 N. Y. British Colonies, 443. 291, 298. 16 Collections N. Y. Hist. Soc. for 23 Richardson v. Pulver, 63 Barb. 1821, p. 347- 67 ; § 122, The Real Prop. Law. 784 Acknowledgments and Proofs by Married Women. Requisites of Certificates. The assent of the feme covert might be implied,^* and if the statute was substantially complied with, it was sufficient;^ but her acknowledgment could not be established by parol by an examination of the officer after his term of office ex- pired.^^ The statute did not apply to femes covert residing without the State.^'' Where a separate acknowledgment is required by law, the certificate must be in accordance, or it is a nullity.^* Where a married woman was judicially separated from her hus- band, the necessity of certifying to a separate acknowledgment was not indispensable in some cases.^® The Statute of 1879. The statute of 1879 dispensed with the neces- sity of a separate acknowledgment on the part of feme covert,^ and in 1880 proof of her deeds was regulated.^^ Even prior to that time, it was held that a separate acknowledgment was not necessary in respect of separate estates, since the Married Women's Acts,^^ at least in the conveyance of property acquired after the passage of those acts and by those married subsequently thereto. The statute of 1879, as amended in 1880, was as follows: Section i. The acknowledgment by married women or the proof of the execution by married women of deeds and other written instruments may be made, taken and certified in the same manner as if they were sole; and all acts and parts of acts which require from them any other or different acknowledgments, proofs or certificates thereof are hereby repealed. § 2. This act shall take effect immediately .^3 2* Rexford v. Rexford, 7 Lans. 6. ^o Laws of 1879, chap. 249. 2B Sheldon v. Stryker, 42 Barb. 284 ; 3i Laws of 1880, chap. 300. Dennis v. Tarpenny, 20 id. 371 ; Can- 32 Yale v. Dederer, 18 N. Y. 265, andarqua Acad. v. McKechnie, 19 271 ; Wiles v. Peck, 26 id. 42 ; An- Hun, 62 ; Meriam v. Harsen, 2 Barb, drews v. Shaffer, 12 How. Pr. 441 ; Ch. 232, affg. 4 Edw. 71. Blood v. Humphrey, 17 Barb. 660; 26Elwood V. Klock, 13 Barb. 50. Allen v. Reynolds, 36 N. Y. Super. 2T Andrews v. Shaffer, 12 How. Pr. Ct. 297 ; Richardson v. Pulver, 63 441; I R. S. 758, § 11; I R. L. of Barb. 67; and see cases cited, supra, 1813, p. 369, § 2; Laws of 1801, chap, under § 183, The Real Prop. Law; 155. and Hulse v. Bacon, 26 Misc. Rep. 28 See note to 14 Abb. N. C. 463 ; 4SS I affd., 40 App. Div. 89. Center v. Morrison, 31 Barb. 155. ^^ Repealed, chap. S47 Laws of 29Delafield v. Brady, 108 N. Y. 1896, and § 251, .sm/'j-o, substituted. 524, affg. 38 Hun, 404. Requisites of Acknowledgments. 785 § 252. Requisites of acknowledgments — An acknowledgment must not be taken by any officer unless he knows or has satisfactory evidence, that the person making it is the per- son described in and who executed such instrument. Formerly i Revised Statutes, 758, section 9: § 9. No acknowledgment of any conveyance having been executed, shall be taken by any officer, unless the officer taking the same, shall know, or have satisfactory evidence, that the person making such acknowledgment, is the individual described in, and who executed such conveyance.^* Knowledge of Officer taking Acknowledgment. This section relates not to the form or contents of the certificate of acknowledgment,?^ but to the knowledge to be possessed by the officer taking such acknowledgment. This knowledge may be the officer's own, or that of some one else. When the officer does not know the person making the acknowledgment, then he must be satisfied of it by evi- dence of some kind.^® But the evidence so taken is to satisfy the officer's conscience,^^ and he does not act judicially.^* Where per- sons acknowledging the instrument are introduced to him by a mutual acquaintance, it may be sufficient when coupled with other circumstances tending to personal knowledge.^* The statute does not undertake to regulate the officer's discretion, but unless he has the requisite knowledge his act is a nullity.*" The contents of the officer's certificate are regulated primarily by subsequent sections of this act.^i Subscribing Witnesses. The following section*^ of this act regu- lates the instance where the conveyance is proved by a subscrib- ing witness and not acknowledged by a party. Forms. For common forms of certificates of acknowledgment, see text under section 255 of this act.** 3* Repealed, chap. 547, Laws of 39 Wood v. Bach, 54 Barb. 134; 1896. Rexford v. Rexford, 7 Lans. 6; Dib- 35 Regulated by §§ 255, 257, The ble v. Rogers, 13 Wend. 536. Sed cf.. Real Prop. Law. Bidwell v. Sullivan, 17 App. Div. 629, 36 Wood v. Bach, 54 Barb. 134. 630. 37 Wood V. Bach, 54 Barb. 134; 40 Watson v. Campbell, 28 Barb. Rexford v. Rexford, 7 Lans. 6. 421 ; Rexford v. Rexford, 7 Lans. 6. 38 Lynch v. Livingston, 8 Barb. 463 ; 4i §§ 255, 256, The Real Prop. Law. s. c, 6 N. y. 422 ; supra, p. 764. Sed 42 § 253. cf. Armstrong v. Combs, 15 App. Div. 43 Infra, p. 794. 246. 50 786 Proof by Subscribing Witness. § 253. Proof by subscribing witness Where the execution of a conveyance is proved by a subscribing witness, such witness must state his own place of residence, and that he knew the person described in and who executed the con- veyance. The proof must not be taken unless the officer is personally acquainted with such witness, or has satisfactory evidence that he is the same person, who was a subscrib- ing witness to the conveyance. Formerly i Revised Statutes, 758, section 12: § 12. The proof of the execution of any conveyance, shall be made by a subscribing witness thereto, who shall state his own place of residence, and that he knew the person described in, and who executed such conveyance; and such proof shall not be taken, unless the officer is personally acquainted with such subscribing witness, or has satisfactory evidence that he is the same person, who was a subscribing witness to such instrument.** Origin of this Enactment. This section of the Revised Statutes was in turn adopted from " An act concerning deeds," passed April 12, 1813,*^ and the latter, from an act of 1801.*® Proof by Subscribing Witness. It is, however, said that the provi- sions of the Revised Statutes respecting proof by subscribing wit- nesses were mostly new, and effected radical changes in respect to the laws relating to the proof and the acknowledgment of convey- ances.*^ A deed in a chain of title must be properly acknowledged or proved to enable it to be recorded,** or read in evidence. In proving the execution of a deed for the purposes of evidence in an action, a witness to the execution of such deed must state that he was present at the execution. It seems it is not sufficient that he testify that the parties acknowledged the execution thereof, and that he subscribed his name as witness.** But this section is not intended to regulate the proof of deeds in actions, but to satisfy ** Repealed, chap. 547, Laws of ** Irving v. Campbell, 121 N. Y. 1896. 353, 358. *6 I R. L. 1813. *9 Norman v. Wells, 17 Wend. 136. *6Chap. iss, Laws of 1801. Sed cf. Hollenback v. Fleming, 6 *T Irving V. Campbell, 121 N. Y. at Hill, 303, 305 ; Early v. St Pat. p. 359. Church Society, 81 Hun, 369; Code Civ. Proc, § 936. Proof by Subscribing Witness. 787 the conscience of the officer who makes the certificate to enable it to be recorded as a conveyance. It is, however, essential that the officer know or have evidence that the subscribing witness is the person making proof.^" Forms. For form of certificate of proof by subscribing witness see text under section 255 of this act.*"^ "0 See the cases cited supra, under ^l Infra, p. 794. § 252, The Real Prop. Law, and § 255, infra. 788 Compelling Witness to Testify. § 254. Compelling witnesses to testify On the application of a grantee in a conveyance, his heir or personal repre- sentative, or of a person claiming under either of them, verified by the oath of the applicant, stating that a witness to the conveyance, residing in the county whore the application is made, refuses to appear and testify con- cerning its execution, and that such conveyance can not be proved without his testimony, any officer authorized to take, within the state, acknowledgment or proof of conveyance of real property may issue a subpoena, requir- ing such witness to attend and testify before him con- cerning the execution of the conveyance. A person who, on being duly served with such a subpoena, without reasonable cause refuses or neglects to attend or refuses to answer under oath concerning the execution of such conveyance, forfeits to the person injured one hundred dollars; and may also be committed to prison by the officer who issued the subpoena, there to remain without bail, and without the Hberties of the jail, until he answers under oath as required by this section. Formerly i Revised Statutes, 758, sections 13, 14: § 13. Upon the application of any grantee, in any conveyance, his heirs or personal representatives, or of any person claiming under them, verified by the oath of the applicant, that any witness to the conveyance, residing in the county where such application is made, refuses to- appear and testify, touching the execution thereof, and that such conveyance cannot be proved without his evidence, any officer authorised to take the acknowledgment or proof of conveyances, except a commissioner of deeds, may issue a subpcena requiring such witness to appear and testify before such officer, touching the execution of such conveyance.^* § 14. Every person, who being served with such subpcena, shall, without reasonable cause, refuse or neglect to appear, or appearing, shall refuse to answer upon oath, touching the matters aforesaid, shall forfeit to the party injured, one hundred dollars; and may also be committed to prison by the officer who issued such subpoena, there to remain without bail, and without the liberties of the jail, until he shall submit to answer upon oath as aforesaid.'''^ 62 Repealed, chap. 547, Laws of s* Repealed, chap. 547, Laws of 1896. 1896. Compelling Witness to Testify. 789 Section 254, Supra. The provisions of the Revised Statutes were taken from an act for giving reHef in cases of insolvency.^ Sec- tion 254 of this act contains the provision of the Revised Statutes, unchanged in substance, except that the provision excepting com- missioners of deeds from the officers who may issue subpoenas has been omitted.®'' B* I R. L. 463, § 7 ; Revisers' note ^® Note of Commissioners of Statu- te I R. S. 758, §§ 13, 14. tory Revision to this section. 790 Certificate of Acknowledgment or Proof. § 255. Certificate of acknowledgment or proof — An ofEcer taking the acknowledgment or proof of a conveyance must indorse thereupon or attach thereto, a certificate, signed by himself, stating all the matters required to be done, known or proved on the taking of such acknowledg- ment or proof; together with the name and substance of the testimony of each witness examined before him, and if a subscribing witness, his place of residence. Formerly i Revised Statutes, 759, section 15: § 15. Every officer who shall take the acknowledgment or proof, of any conveyance, shall endorse a certificate thereof, signed by himself, on the conveyance; and in such certificate, shall set forth the matters hereinbefore required to be done, known, or proved, on such acknowledgment or proof, together with the names of the witnesses examined before such officer, and their places of residence, and the substance of the evidence by them given.5i5 Purpose of a Certificate. The primary purpose of a certificate of acknowledgment under this section is to entitle a conveyance to be recorded.^^ It is not to entitle it to be read in evidence,^* and it is not to give validity to the instrument of conveyance.^® Form of a Certificate. The form of the certificate not having been prescribed by law is left in some measure to the officers.^" There need be only a substantial compliance with the statute." Form and Position of Certificate. The form and position of the certificate must, however, be such as to entitle the conveyance to be recorded under this article of The Real Property Law.^^ Contents of the Certificate. The certificate must comply with either section 252 or section 253 of this act. 58 Repealed, chap. 547, Laws of Academy v. McKechnie, 19 Hun, 62, 1896. 90 N. Y. 618; Jackson ex dem, etc. 57 § 241, The Real Prop. Law ; Tut- v. Gumaer, 2 Cow. 552 ; Sheldon v. tie V. The People, 36 N. Y. 431, 435. Stryker, 42 Barb. 284. Cf. In re BSCode Civ. Proc, § 935, regulates Henschel, 109 Fed. 861. evidence ; vide supra, p. 770. 6I Meriam v. Harsen, 2 Barb. Ch. 59 See Smith v. Tim, 14 Abb. N. C. 232 ; Carpenter v. Dexter, 8 Wall. 447; revd., 101 N. Y. 472; Treadwell 513; Sheldon v. Stryker, 42 Barb. 284; v. Sackett, 50 Barb. 444. Irving v. Campbell, 121 N. Y. 353, eoRitter v. Worth, 58 N. Y. 627; 360. West Point Iron Co. v. Reymert, 45 62 Irving v. Campbell, 121 N. Y. id. 703; Smith v. Boyd, loi id. 472, 353; vide infra, p. 793. revg. 10 Daly, 149; Canandarqua Certificate of Acknowledgment or Proof. 791 Where the acknowledgment is by a party to the conveyance, the certificate must show knowledge of the party by the officer."^ The usual words, "' to me known," or " known to me to be, etc.," are not, however, indispensable.*^* It was formerly sufficient to certify that the officer knew the grantor to be the one who executed the deed.®^ But the certificate must now also contain words of ac- knowledgment.^^ Since the Revised Statutes the certificate must show that the party is known to the officer to be the same person described in and who executed the conveyance.®'' But as no set form is prescribed by any statute, except for corporations, a certifi- cate may be defective in form and yet a sufficient compliance with the statute, for some purposes.®^ Officer's Means of Knowledge. The officer may obtain the knowl- edge of the witness by an ordinary introduction; ^ and as such in- troduction is to satisfy his own conscience,™ he need not state this evidence of knowledge in the certificate.''^ Knowledge. It is sufficient if knowledge of the party in some way appear in the certificate.'^ Venue. As a notary, commissioner, or other local officer may not act out of the place of his jurisdiction,''^ the omission of a venue renders a certificate prima facie defective for some purposes.''* 63 Miller v. Link, 2 Sup. Ct. 86; 487. Cf. Smith v. Boyd, loi N. Y. Pryer v. Rockefeller, 63 N. Y. 268; 472. Sethlin v. Golding, 15 N. Y. St. Rep. 68 Smith v. Boyd, loi N. Y. 472, and 814; Goddard v. Schmoll, 24 Misc. see note on certificates of acknowl- Rep. 381 ; Paolillo v. Faber, 56 App. edgments, 14 Abb. N. C. 452, 455, 456. Div. 241; Freedman v. Oppenheim, 69 See cases cited, supra, § 252, The 80 id. 487. Real Prop. Law. 64 Hutton V. Weber, 17 N. Y. Supp. ^o See cases cited under § 252, The 463; afifd., 137 N. Y. 615. Real Prop. Law; Rexford v. Rex- «5 Jackson v. Osborn, 2 Wend, sss ; ford, 7 Lans. 6. Sed cf. Bidwell v. Thurman v. Cameron, 24 id. 87 ; Jack- Sullivan, 17 App. Div. 620, 630. son V. Gumaer, 2 Cow. 552. Cf. '^1 Ritter v. Worth, 58 N. Y. 627. Hunt V. Johnson, 19 N. Y. 279. Cf. Bidwell v. Sullivan, 17 App. Div. 66 People V. Plarrison, 8 Barb. 560. at p. 630. 67 Fryer v. Rockefeller, 63 N. Y. 72 Hutton v. Weber, 17 N. Y. Supp. 268 ; People v. Harrison, 8 Barb. 560 ; 462 ; affd., 137 N. Y. 615 ; Smith v. Irving V. Campbell, 121 N. Y. 353, Boyd, loi id. 472. 361; Miller v. Link, 2 Sup. Ct. 86; "jackson v. Humphry, i Johns. Goddard v. Schmoll, 24 Misc. Rep. 498; In re Henschel, 109 Fed. Rep. 381; Paolillo V. Faber, 56 App. Div. 861, 864. 241 ; Freedman v. Oppenheim, 80 id. 74 /^ ^g Henschel, 109 Fed. Rep. 861. 792 Certificate of Acknowledgment or Proof. Certificate, where Acknowledgment is by Subscribing Witness. Where the conveyance is proved by a subscribing witness,''^ it is said the certificate should show that such witness was present at the execu- tion;'^^ that he signed at the time of execution;" the residence of the witness;™ that he knew the person described in and who exe- cuted the conveyances^ The certificate must also show either that the officer was personally acquainted with the subscribing wit- ness,^" or else the substance of the testimony of the witnesses who proved the identity of the subscribing witness,^^ and the names of such witnesses.®^ How far it may be necessary for the officer to know the witnesses who prove the identity of the subscribing wit- ness, is another question.*^ Certificate where Acknowledgment Taken Out of the State. A certificate of an acknowledgment, taken out of the State, should comply with this section** as well as with the next section of this act.*^ Certificate Must Comply with Law then in Force. The certificate of acknowledgment need only comply with the statute in force when it is taken."^ But unless it does so comply in substance and truth it is a nulHty, at least, for purposes of evidence,*'^ as the facts stated in such certificates may be rebutted.^ Acknowledgment not a Judicial Act. As the act of taking an ac- knowledgment is not a judicial one, the officer's consanguinity to '5 Who is such, see Earley v. St. ^ Not their residence. Cf. Dibble Patrick's Church Society, 8i Hun, v. Rogers, 13 Wend. 537. 369. ^ Cf. Jackson v. Harrow, 11 Johns. ■^6 Norman v. Wells, 17 Wend. 136. 434; Jackson v. Vickory, i Wend. Sed cf. Hollenbeck v. Fleming, 6 Hill, 406. 303. ^ People ex rel. Alton v. Register, ''T Earley v. St. Patrick's Church 6 Abb. Pr. i8o. Society, 81 Hun, 369. *^ § 256, The Real Prop. Law. ''^ Irving V. Campbell, 121 N. Y. ^ Richardson v. Pulver, 63 Barb. 353 ; vide supra, p. 786. 67 ; Trustees Canandarqua Academy ra See the language of § 255, supra; v. McKechnie, 90 N. Y. 618, 627. Irving V. Campbell, 121 N. Y. at p. ^Watson v. Campbell, 28 Barb. 25p_ 421 ; Rexford v. Rexford, 7 Lans. 6 ; 80 Sheldon v. Stryker, 42 Barb. 284 ; Irving v. Campbell, 121 N. Y. 353. Bidwell V. Sullivan, 17 App. Div. Cf. Heilbrun v. Hammond, , 13 Hun, 629 ; Paolillo v. Faber, 56 id. 241 ; 474. Fryer v. Rockfeller, 63 N. Y. 268. 88 Code Civ. Proc, § 936. 81 Ritter V. Worth, 58 N. Y. 627. Certificate of Acknowledgment or Proof. 793 the party is no bar.*® But an officer who is a party to the convey- ance is debarred by that fact from taking the acknowledgment.*'* Officer's Subscription. When the official character of the officer taking the acknowledgment appears in the body of the certificate, it is not necessary that it be appended to the subscription of his signature.®^ Re-acknowledgment. A deed with a defective certificate may be made good by re-acknowledgment,®^ or by statute.®^ Place of Certificate. The certificate had formerly to be indorsed on the conveyance.** But it is now quite sufficient if in some way attached or subjoined to the conveyance.®^ It must be, however, apparent that the certificate relates to the conveyance and, there- fore, it should not be on a separated paper.*® Operation of Certificate. How far a distinction is to be drawn be- tween a certificate made for the purpose of recording a convey- ance, and a certificate made for the purpose of reading a deed in evidence, should always be considered. The certificate for the latter purpose is only prima facie evidence of acknowledgment or execution, and these facts may be rebutted on the trial.*'' But when a deed valid inter partes^^ is once recorded, on the strength of even a false certificate, why should it not then be operative for some purpose, as notice to subsequent purchasers, as it is in fact recorded?** It would be good as against a subsequent purchaser 89 Lynch v. Livingston, 8 Barb. 463 ; ** i R. S. 759, § 15. s. c, 6 N. Y. 422 ; Remington Paper ^ Thurman v. Cameron, 24 Wend. Co. V. O'Dougherty, 81 id. 474, 483; 87. Canandarqua Academy v. McKech- ^ Irving v. Campbell, 121 N. Y. nie, 19 Hun, 62 ; Albany Co. Savings 353, 360 ; Thurman v. Cameron, supra. Bank v. McCarty, 149 N. Y. 71, 82. «7 Code Civ. Proc, § 936, formerly 90 Armstrong v. Combs, 15 App. i R. S. 759, § 17; repealed, chap. 417, Div. 246. Laws of 1877. 91 14 Abb. N. C. 460, and cases ssyoorhes v. Presbyterian Church, there cited. 17 Barb. 103; Wood v. Chapin, 13 N. 92 Doe ex dem. De Peyster et al. v. Y. 509; Strough v. Wilder, 119 id. Rowland, 8 Cow. 277; Osterhout v. 530, 535. Shoemaker, 3 Hill, 513. ^Cf. Heilbrun v. Hammond. 13 93 Watson V. Mercer, 8 Pet. 88. Cf. Hun, 574. 14th Amend. U. S. Const, as to rights of third parties affected. 794 Forms of Certificates. having actual notice of such deed.^ But the weight of authority seems to be the other way, that the record is a nullity.^ Seal. Certificates by magistrates, consuls, foreign ministers, etc., must be under seal of office.^ Fonns of Certificates of Acknowledgment. For the convenience of the profession the following forms, in constant use, and approved generally by counsel, are inserted :* (For Individual Use, by a Notary.) State of New York, County of r •• On this .... day of , in the year 19 . . , before me came , to me known to be the in- dividual described in, and who executed the above instru- ment, and acknowledged that he executed the same.^ ( Notary's Notary Public in and for County. seal.^) (Certificate of Acknowledgment before a Mayot.) State of New York, ) County of , } ss.: City of , ' On this .... day of , in the year 19 . . , before me, the mayor of the city of , came at said city , to me known to be the individual 1 See cases cited, supra, under person described in and who executed § 241, The Real Prop. Law. the foregoing instrument, and the said 2 Irving V. Campbell, 121 N. Y then acknowledged to me 353 ; s. c, 54 N. Y. Super. Ct. 224. that he executed the same for the 3 § 257, The Real Prop. Law, infra, purposes therein set forth." * These forms are those used by the Title Guarantee & Trust Co. of New ^ Notarial seal is not indispensable. York City. This short form is less prolix than ^ The form may be amplified, if de- the more comprehensive f6rm once sired, thus : " On this day of used by masters in chancery, but in the year , before it is in common use and approved by me personally came , to me modern conveyancers, as it satisfies known and known to me to be the the statute. Forms of Certificates. 795 described in and who executed the above instrument, and acknowledged that he executed the same. In witness whereof, I have hereunto set my hand and affixed the seal of said city, the day and year first above written. Mayor, etc.'' Seal of ) the city of [• (Form of Certificate for Commissioner of Deeds.) n. State of New York, ] County of , > ss.: City of , j On this .... day of , 19. ., before me, a commis- sioner of deeds for the State of New York, residing in the city of' , aforesaid, came at said city , to me known to be the individual described in and who executed the foregoing instrument, and ac- knowledged that he executed the same. In witness whereof, I have hereunto set my hand and affixed my official seal, this .... day of , 19. ., at the city of , aforesaid. Commissioner of Deeds.* [L. S.J (Form of Certificate for Acknowledgment by One Member of Firm.) State of New York, County of On this .... day of , 19. . , before me personally came , to me known and known to me to be a member of the firm of T Where the official character of the * The official designation need not official taking the acknowledgment be repeated, as it appears in the body appears in the body of the instrument, of the certificate, unless the officer it need not be appended to signature, prefers. Vide p. 793, supra. but it is more seemly to repeat it. Vide p. 793. supra. 796 Forms of Certificates. the firm described in and which executed the foregoing in- instrument, and said acknowledged that he executed the foregoing instrument for and on be- half of said firm. [ ss. (Individual Foreign Acknowledgment.) United States Consulate in the City of Paris, Republic of France, On this .... day of , 19 . . , before me, the ...... consul of the United States, resident in said City of Paris, personally came in said city to me known to be the individual described in and who executed the within instrument, and acknowl- edged that he executed the same. In witness whereof, I have hereunto set my hand and affixed the seal of said United States Consulate, at said City of Paris, the day and year last aforesaid.® (Proof by Subscribing Witness Known to OflScer.) State of New York, County of On this .... day of , in the year 19 . . , before me personally came , subscribing wit- ness to the within instrument, with whom I am personally acquainted, who, being by me duly sworn, did depose and say that he resided at the time of the execution of said instrument, and still resides, in ; that he is and then was acquainted with , and . knew to be the individual described in, and who executed the above instrument; and that he, said subscrib- ing witness, was present and saw execute the same, and that he, said witness, at the same time, subscribed his name as witness thereto. 8 Cf. § 250, The Real Prop. Law ; can " Embassy, etc., instead of the Jordan v. Underhill, 91 App. Div. 124, constitutional and organic title of this 130. The recent order of the Federal country, can have no effect on forms Secretary of State in regard to the use executed before such officials resident of "American " Consulate, "Ameri- abroad. Forms of Certificates. 797 (Proof by Subscribing Witness Unknown to Officer.) State of New York, County of '^ " ' On this .... day of , in the year 19 . . , before me personally came A. B. and C. D., and the said A. B., being to me personally known, and being by me duly sworn, did depose and say : That he resides that he is acquainted with C. D., now present, and he knows -him to be the same person who is a subscribing wit- ness to the foregoing instrument, which is to me satisfac- tory evidence that the said C. D. is such subscribing wit- ness; and the said C. D., being by me duly sworn, did de- pose and say, that he resided, at the time of the execution of said instrument, and still resides ; that he is and then was acquainted with , and knew to be the individual described in, and who executed the foregoing instrument; and that he, said sub- scribing witness, was present and saw execute the same; and that he, said witness, at the same time sub- scribed name as witness thereto. (Proof by Subscribing Witness Abroad.) United States Consulate in the City of Paris, \ Republic of France, ' On this .... day of , 19 • • , before me the consul of the United States, resident in said city of Paris, personally came in said city , subscribing witness to the above instrument, with whom I am personally acquainted, who, being by me duly sworn, did depose and say that he resided at the time of the execution of said instrument, and still resides in ; that he is and then was acquainted with , and knew him to be the in- dividual described in, and who executed the above instru- ment, and that he, said subscribing witness, was present and saw him execute the same, and that he, said witness, at the same time subscribed his name as witness thereto. In witness whereof, I have hereunto set my hand and afifixed the seal of said United States Consulate, at said City of Paris, the day and year last aforesaid. 798 Forms of Certificates. (Certificate of Acknowledgment by Attorney in Fact.) State of New York, County of "" On this .... day of , 19. ., before me personally came , to me known to be the in- dividual described in, and who executed the foregoing in- strument, and to me known to be the attorney in fact of , the individual described in, and who, by his said attorney in fact, executed the same, and acknowledged that he executed said instrument, as the act and deed of said , by virtue of a power of attorney, dated , 19 . . , and recorded in the office of the register of the county of , on , 19. ., in Liber of Powers of Attor- ney, at page Forms for Corporations. See i 258, The Real Property Law. When Certificate to State Time and Place. 799 § 256. When certificate to state time and place. — Where the acknowledgment or proof is taken by a commissioner appointed by the governor, for a city or county within the United States, and without the state, the certificate must also state the day on which, and the town and county or the city in which the same was taken. Formerly chapter 270, section 5, Laws of 1850, as amended by chapter 58, Laws of 1876, section 3, and chapter 115, Laws of 1880: § 5. No commissioner appointed under or by virtue of this act shall be authorized to take the proof or acknowledgment of any deed or instrument, or to administer any oath or affirmation at any place other than within the city and county within which, he shall reside at the time of his appointment, and every certificate of any such commissioner to any proof or acknowl- edgment taken before him, or to any oath or affirmation administered by him, shall specify the day on which and the town and county or the city within which the same was taken or administered ; and without such speci- fication the said certificate shall be wholly invalid, inoperative and void.i* Note on this Section. See the laws regulating the appointment of commissioners, cited under section 249, The Real Property Law.^^ A certificate should also respond to all other legal requirements, besides those stated in this section of this act.^^ Certificate must State Time and Place. While the form of certificates of acknowledgment is not prescribed by law^^ (except in the case of corporations)" it is obvious from this section that where the certificate is that of a commissioner for another State of the Union, it should state the day, and the town or city and county where it is taken, or it may be fatally defective, and thus destroy the con- veyance for the purposes of tender under a contract to convey.^^ Form. See a form of certificate of acknowledgment for a com- missioner of deeds of the State of New York under section 255 of this act.^^ 1" Repealed, chap. 547, Laws of i* Supra, p. 790. 1896. 1* § 258, The Real Prop. Law. 11 Supra, p. 776. 15 Irving v. Campbell, 121 N. Y. 12 § 255, The Real Prop. Law ; Pec- 353. pie ex re!. Alton v. Register, 6 Abb. 1* Supra, p. 795. Pr. 180. 800 WHEisr Certificate must be under Seal. § 257. When certificate must be under seal Where a certifi- cate of acknowledgment or proof is made by a com- missioner appointed by the governor, or by the mayor or other chief magistrate of a city or town without the United States, or by a minister, charge d' afifaires, consul- general, vice-consul-general, deputy-consul-general, vice- .consul or deputy consul, consular or vice-consular agent, or consul or commercial vice-commercial agent, or secre- tary of legation of the United States, it must be under his seal of office, or the seal of the consulate to which he is attached. All acknowledgments or proofs of deeds, mort- gages or other instruments relating to real property, the certificates of which were made in the form required by the laws of this state, by a consul-general, vice-consul- general, deputy-consul-general, vice-consul, deputy-consul, consular agent, vice-consular agent, consul or commercial agent vice-commercial agent, or secretary of legation of the United States prior to the time when this act takes effect, are confirmed, but nothing herein contained shall affect any action or proceeding now pending in any court. Formerly i Revised Statutes, 757, section 7: § 7. Such proof or acknowledgment, duly certified under the hand, and seal of office, of such consuls, or of the said mayors or chief magistrates respectively, or of such minister or charge des affaires, shall have the like force and validity, as if the same were taken, before a justice of the supreme court of this state.i'^ Note on this Section. The provisions of the Revised Statutes, set out above, were amplified by section i, chapter 246, Laws of i863,''^ and chapter 136, Laws of 1875: Section I, chapter 246, Laws of 1863, is as follows: § I. The acknowledgment or proof of any deed or other written instru- ment, required to be proven or acknowledged in order to entitle the same to be recorded or read in evidence in this State, by any person being in any foreign country, may be made before any vice-consul or commercial agent of the United States government, resident in any foreign port or country, and when certified by him, under his seal of office or under the seal of the consulate to which he is attached, to have been made before him by the party executing the same, and that the said party is known or proven to 17 Repealed, chap. 547, Laws of is Repealed, chap. 547, Laws of 1896. 1896. f When Certificate must be under Seal. 801 him to be the same person who is described in and who executed the same,: shall be as valid and effectual as if taken before one of the justices of the Supreme Court of the State. . Comment. The original of this section of The Real Property Law^® was amended in 1904 to read as it now stands in this edition.^" Forms. General forms of certificate of acknowledgment are given under a prior section of this act. 1* See § 257, Appendix I, infra. a law April 29, 1904, to take effect 2" Chap. 528, Laws of 1904, became immediately. SI 802 Certificate of Acknowledgment by Corporation. § 258. Acknowledgment by corporation and form of certificate. — The acknowledgment of a conveyance or other instru- ment by a corporation, must be made by some officer thereof authorized to execute the same by the board of directors of said corporation. The certificate of acknowl- edgment must be in substantially the following form, the blanks being properly filled. State of New York, ^ ss.: County of , ^ On the day of in the year , before me personally came to me known, who, being by me duly sworn, did depose and say that he resided in ; that he is the (president or other officer) of the (name of corporation), the corpora- tion described in and which executed the above instru- ment; that he knew the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order. (Signature and office of officer taking acknowledgment.)' If such corporation have no seal, tliat foct must be stated in place of the statements required respecting the seal. Note on this Section. This section of The Real Property Law is new.^^ But the substance of the certificate, set forth in the statute, was required, prior to this act.^ Prior to this act no particular form of proof or acknowledgment of a mortgage or deed, made by a corporation, was prescribed, and proof or acknowledgment by its secretary was held sufficient.^* Other cases are to the same effect.^* In Trustees of the Canan- darqua Academy v. McKechnie,^^ the attestation clause of a mort- al Note to this section by Cotnmis- ** Lovett v. The Steam Saw Mill sioners of Statutory Revision, Ap- Assn., 6 Paige, 54, 60; The Trustees pendix I, infra. of the Canandarqua Academy v. Mc- 22 Rogers v. Pell, 47 App. Div. 240, Kechnie, 90 N. Y. 618; Howe Ma- 244. chine Co. v. Avery, 16 Hun, SSS; 23 Pruyne v. Adams Furniture & Johnson v. Bush, 3 Barb. Ch. 207. Mfg. Co., 92 Hun, 214. 25 i(j^ supra. Certificate of Acknowledgment by Attorney. 803 gage stated that the corporation had caused it to be signed by " G.," its president, and sealed with the corporate seal. It was so signed and sealed. The only certificate of acknowledgment was to the effect that a subscribing witness " knew ' G.,' the person described in and who executed the said deed." This was held sufficient. Form. The following additional form for corporate use may be of service : (Certificate of Acknowledgment by Corporate Attorney in Fact.) State of New York, \ County of , > ss.: City of , ) On this .... day of , 19. ., before me person- ally came to me known to be the presi- dent of the , the corporation described in and which executed the foregoing instrument; which said cor- poration is known to me to be the attorney in fact of the individual described in and who by said attorney in fact, executed the foregoing instrument, and the said , being by me duly sworn, did depose and say that he resided in ; that he is president of , the corporation described in and which executed the foregoing instrument ; that he knew the seal of said corporation; that the seal afifixed to said instrument was such corporate seal; that it was so afifixed by order of the board of of said corporation, and that he signed his name thereto by like order, and that said seal was affixed and said instrument was executed by said company as the act and deed of said under and by virtue of a power of attorney, dated 19 . . , and recorded on , 19 . . , in the office of the register of the county of , in Liber Powers of Attorney : at page 804 Authentication by County Clerk. § 259. When county clerk's authentication necessary. — A certificate of acknowledgment or proof, made within the state, by a commissioner of deeds, justice of the peace, or, except as otherwise provided by law, by a notary public, does not entitle the conveyance to be read in evidence or recorded, except within the county in which the officer resides at the time of making such certificate, unless authenticated by a certificate of the clerk of the same county, provided however, that all certificates of acknowl- edgments or proof, made by or before a commissioner of deeds of the city of New York residing in any part therein, shall be authenticated by the city clerk of said city, that the said commissioner of deeds, was duly appointed and qualified as such and no other certificate shall be required, from any other officer to entitle said conveyance to be read in evidence or recorded in any county or part of a county, situated within the limits, confines, or boundaries, of the said city of New York. But this section does not apply to a conveyance executed by an agent for the Hol- land Land Company, or of the Pulteney estate, lawfully authorized to convey real property.^* Enacted by chapter 147 of the Laws of 1899, as an amendment to The Real Property Law. This section as originally enacted and reported by the Commissioners of Statutory Revision was as follows: § 259. When county clerk's authentication necessary. — A certificate of acknowledgment or proof, made within the state, by a commissioner of deeds, justice of the peace, or, except as otherwise provided by law, by a notary public, does not entitle the conveyance to be read in evidence or recorded, except within the county in which the officer resides at the time of making such certificate, unless authenticated by a certificate of the clerk of the same county. But this section does not apply to a conveyance executed by an agent for the Holland Land company, or of the Pulteney estate, lawfully authorized to convey real property. Formerly i Revised Statutes, 759, sections 18, 19: § 18. Where any conveyance shall be proved or acknowledged, before any judge of the county courts', not of the degree of counsellor at law, in the supreme court, or before any commissioner of deeds appointed for any county or city, it shall not be entitled to be read in evidence, or to be recorded, in any other county than that in which such judge or commis- sioner shall reside, unless in addition to the preceding requisites, there shall 28 Chap. 147, Laws of 1899. Authentication by County Clerk. 805 be subjoined to the certificate of proof or acknowledgment, signed by such judge or commissioner, a certificate under the liand and official seal of the clerk of the county, in which such judge or commissioner resides, specifying that such judge or commissioner was, at the time of taking such proof or acknowledgment, didy authorised to take the same, and that the said clerk is well acquainted with the handwriting of sucK. judge -or commissioner, and verily belives, that the signature to the said certificate of proof or acknowl-: edgment, is genuine.27 § 19. The last section shall not apply to any conveyance executed by any agent for the Holland Land company, or by any agent of the Pulteney estate, lawfully authorized to convey real estate.^s County Clerk's Certificates. Since 1847 the certificates of county judges have not been required to be authenticated by the county clerk.^® The act of 1833^" did not change the provisions of the Revised Statutes, requiring certificates of the county clerk, in order to entitle conveyances proved or acknowledged before commis- sioners of deeds or county judges, not of the degree of counsellor, to be recorded.^^ Holland Land Company. The records of the Holland Land Com- pany, papers, maps, etc., are on a statutory basis,^^ and that com- pany and the Pulteney estate may be said to have a particular status in this regard, not of general interest throughout the State. ^^ The fundamental acts concerning the Holland Land Company are those passed in 1796, an act for relief of William Willinck and others, aliens;^* in 18 19, an act declaring the terms and conditions of a grant of land from the Holland Land Company for the use of the people of this State,^^ and in 1839, an act relative to title, papers, etc., of the Holland Land Company.^® Pulteney Estate. The chief acts touching the " Pulteney estate " were enacted in 1807, viz.: An act for the confirmation of title to 2T Repealed, chap. 547, Laws of 33 Howard v. Moot, 64 N. Y. 262; 1896. Duke of Cumberland v. Graves, r> 28 Repealed, chap. 547, Laws of Barb. 595; s. c, 7 N. Y. 305; People 1896. V. Snyder, 51 Barb. 589; s. c, 41 N. 29 Laws of 1847, chap. 470; People Y. 397. V. Hurlburtt, 44 Barb. 126. 34 3 Greenl. 341, 387, 400. 3»Laws of 1833, chap. 271, § g. 35 Laws of 1819, p. 301. 31 Wood V. Weiant, i N. Y. yj. 36 chap. 295, Laws of 1839 ; N. Y. 32 Laws of 1839, chap. 295 ; Bissing C. & H. R. R. R. Co. v. Brockway V. Smith, 85 Hun, 564. Brick Co., 158 N. Y. 470, 476. 806 Authentication by County Clerk. lands held under conveyance by Robert Troup, as agent of the Pulteney estate;*^ in 1807, an act for the relief of Sir James Pul- teney and wife;^^ in 1814, an act for the relief of settlers on the Pulteney estate;^" in 1821, " an act concerning the Pulteney es- tate;" *•* in 1827, " an act relative to deeds for lands in the Pulteney estate." *^ '■^5 Webster, 210. *OLaws of 1821, p. 13. 38 5 Webster, 210. *1 Laws of 1827, p. 6. 39 Laws of 1814, p. 16. When other Authentication Necessary. 807 § 260. When other authentication necessary In the following cases a certificate of acknowledgment or proof is not entitled to be read in evidence or recorded unless authenti- cated by the following officers, respectively: 1. Where the original certificate of acknowledgment or proof is made by a commissioner appointed by the gover- nor, by the secretary of state.^ 2. Where made by a judge of a court of record in Canada, by the clerk of the court. 3. Where made by the officer of a state of the United States, or of the dominion of Canada authorized by the laws thereof to take the acknowledgment or proof of deeds to be recorded therein, by the secretary of state of the state, or the clerk, register, recorder or prothonotary of the county in which the officer making the original certificate resided, when the certificate was made, or by the clerk of any court of that county, having by law a seal.** Formerly chapter 195, section 2, Laws of 1848, as amended by chapter 729, Laws of 1894; chapter 270, section 4, Laws of 1850; chapter 208, section i, Laws of 1870; chapter 136, section 2, Laws of 1875.** Note on Section 260, Supra. The acts enabling the appointments of commissioners by the governor are designated under section 249 of this act.*" Contents of Certificates of Authentication. The contents of a certifi- cate of authentication are prescribed by the next section of this act.*« The importance of an authentication of foreign certificates of acknowledgment or proof is referred to under the next section of this act.*'' *2 Cf. chap. 107, Laws of 1895. *5 Supra, p. 776. *3 Cf. chap. 99, Laws of 1891 ; chap. *^ Infra, p. 808. 729, Laws of 1894. *T § 261, The Real Prop. Law. ** Note of Commissioners of Statu- tory Revision to this section. 808 Contents of Certificate of Authentication. § 261. Contents of certificate of authentication. — An officer au- thenticating a certificate of acknowledgment or proof must subjoin or attach to the original certificate a certifi- cate under his hand, and if he has, pursuant to law, an offi- cial seal, under such seal. Except when the original certifi- cate is made by a judge of a court of record in Canada, such certificate of authentication must specify that, at the time of taking the acknowledgment or proof, the offi- cer taking it was duly authorized to take the same; that the authenticating officer is .acquainted with the former's handwriting, or has compared the signature to the origi- nal certificate with that deposited in his office by. such officer; and that he verily believes the signature to the original certificate is gunuine;*® and if the original certifi- cate is required to be under seal, he must also certify that he has compared the impression of the seal affixed thereto with the impression of the seal of the officer who took the acknowledgment or proof deposited in his office, and that he verily believes the impression of the seal upon the original certificate is gunuine.*® A clerk's certifi- cate authenticating a certificate of acknowledgment or proof, taken before a judge of a court of record in Canada, must specify that there is such a court; that the judge before whom the acknowledgment of proof was taken, was, when it was taken, a judge thereof; that such court has a seal; that the officer authenticating is clerk thereof; that he is well acquainted with the handwriting of such judge, and verily believes his signature is genuine. Formerly chapter 270, section 4, Laws of 1850; chapter 136, section 2, Laws of 1875 ; chapter 195, section 2, Laws of 1848, as amended by chapter 5S7, Laws of 1867; chapter 208, section i, Laws of i87o.*9 Note on this Section. The law touching certificates of authentica- tion was formerly embodied in several acts.^" <8 The word genuine is printed to certificate to acknowledgment taken gunuine in the Session Laws of 1896, out of the State but in the Union) ; vol. I, p. 613. Laws of 1858, chap. 308 (N. Y. com- *9 Note of Commissioners of Statu- missioners) ; Laws of 1863, chap. 246; lory Revision to this section. Laws of 1865, chap. 421 (consuls) ; 50 Laws of 1848, chap. 195, § 2, as Laws of 1870, chap. 209 (in Canada), amd. by Laws of 1867, chap. 557 (as Contents of Certificate of Authentication. 809 Defects in Authentication. Some defects in a certificate of authen- tication may be helped out by intendment." Effect of Omission of Certificate. Where a certificate of authentica- tion is requisite, its omission renders a deed ineffectual as a con- veyance of a marketable title.^^ Nothing is better settled than that a purchaser is entitled to a deed or conveyance which will constitute a good record title in his favor. If a deed is not so acknowledged or authenticated as to entitle it to be recorded (if authentication be required), then it is not such a conveyance as satisfies a covenant or contract to convey, and the title may be rejected by the purchaser.^^ Thus it becomes of the first import- ance that a conveyance shall be well and sufficiently acknowledged, and if authentication of a certificate of acknowledgment or proof be required that it shall also be well and sufficiently authenticated. Contents of Certificate. The certificate should state that the au- thenticator is well acquainted with the handwriting of the officer taking the acknowledgment, and verily believes that the signature to the certificate of proof or acknowledgment is genuine.^* . 61 Thorn v. Mayer, 12 Misc. Rep. ^^ Irving v. Campbell, 121 N. Y. 487. 353; Jay v. Wilson, 91 Hun, 391. 62 Williamson v. Banning, 86 Hun, ^4 Goddard v. Schmoll, 24 Misc. 203 ; Freedman v. Oppenheim, 80 App. Rep. 381 ; Freedman v. Oppenheim, 80 Div. 487. App. Div. 487. 810 Recording where Parties Dead. § 262. Recording of conveyances acknowledged or proved with- out the state, where parties and certifying officer are dead. — Where the execution of a conveyance of real property within this state is acknowledged or proved according to the laws of any other state of the United States, and a certificate of the acknowledgment or proof signed by the officer taking it is annexed to or indorsed upon the instru- ment, if such officer and the grantor or mortgagor be dead and the death of all of them be proved by affidavit, sworn to in such state before an officer authorized by its laws to administer an oath therein, the conveyance, with the affidavit or affidavits annexed thereto, on being authenticated as required by this section, may be read in evidence and recorded in the same manner, and with like effect, as if the conveyance was acknowledged or proved and certified as required by the laws of this state. To entitle such conveyance and affidavits to be read in evi- dence, or recorded, a certificate of the clerk, recorder, register or prothonotary of the county in which the deceased officer resided, authenticating his signature, and also certifying that the conveyance is acknowledged or proved in all respects, as required by the laws of such state, must be annexed to the original certificate; and a like certificate of such clerk, recorder, register or protho- notary, authenticating the signature of the officer, before whom the affidavits proving the deaths were taken, must be annexed to such affidavits. The affidavits on being recorded, are presumptive evidence of the matters of fact, required to be stated therein. Formerly chapter 259, Laws of 1858, as follows: An Act in relation to the. proof or acknowledgment of deeds and other con- veyances by persons residing out of this state. Passed April isth, 1858. Section i. Any deed or conveyance or other written instrument, affect- ing real estate within this state, proved or acknowledged in any other state or territory of the United States, according to the laws of such state or ter- ritory, where the grantor or grantors of such deed or conveyance and the officer before whom the same shall be proved or acknowledged shall be dead; and when such proof or acknowledgment shall be certified as herein provided, may be recorded in any county of the state, and may be read in evidence in any court of this state, in the same manner and with the like effect as though the same had been proved or acknowledged as required by Recording where Parties Dead. 81.1 the laws of this state, provided that the death of the grantor or grantors, and of the officer before whom the same shall be proved or acknowledged, shall be proved by the affidavit of one or more persons, sworn to before some officer authorized by law to administer oaths in such state or terri- tory, and certified as herein provided. § 2. To enlitle^^ such deed or conveyance, or other written instrument, to be read in evidence or recorded in this state, there shall be annexed to the certificate of proof or acknowledgment, signed by such officer, a certificate under the name and official seal of the clerk or register of the county in which such officer resided, specifying that such officer was, at the time of taking such proof or acknowledgment duly authorized to take the same, and that such clerk or register is well acquainted with the handwriting of such officer, and verily believes that the signature to said certificate of proof or acknowledgment is genuine, and that such deed or conveyance or written instrument, is proved or acknowledged in all respects, as required by the laws of such state or territory. There shall also be a like certificate of such clerk or register, attached to the jurat or affidavit, proving the death of the grantor or grantors, and of the officer before whom the deed or written instrument was proved or acknowledged, certifying that such officer was, at the time of taking such affidavit or affidavits, duly authorized to take the same, and that such clerk or register is well acquainted with the handwrit- ing of such officer, and verily believes that the signature to such jurat or affidavit is genuine. Such affidavit or affidavits shall be recorded with such deed or other written instrument, and be presumptive evidence of the facts therein stated. § 3. This act shall take efifect immediately.s^ "S So in original Session Laws of ^^ Repealed, chap. 547, Laws of 1858. 1896. 812 Proof where Witnesses Dead. § 263. Proof where witnesses are dead. — Where the witnesses to a conveyance, authorized to be recorded, are dead, its execution may be proved before any officer authorized to take within the state the acknowledgment and proof of conveyances, other than a commissioner of deeds, a notary public, or a justice of the peace. The proof of the execution must be made by satisfactory evidence of the death of all the witnesses thereto, and of the handwriting of such witnesses, or any one of them, and of the grantor, which evidence, with the name and residence of each witness examined, must be set forth by the ofificer taking the same, in his certificate of proof. A conveyance so proved, and certified, may be recorded in the proper office, if the original conveyance be at the same time deposited in the same office, there to remain for the inspection of all persons desiring to examine the same. If the conveyance afifects real property in two or more counties, a certified copy of the conveyance, with the proof and certificates, may be recorded in each of such counties. Such recording and deposit are construc- tive notice of the execution of such conveyance to all purchasers of the same real property, or any part thereof, from the same vendor, his heirs or assigns, subsequent to such recording, but do not entitle the conveyance or the record thereof, or a transcript of the record to be read in evidence. Formerly i Revised Statutes, 761, sections 30, 31, 32, 33: § 30. Where the witnesses to any conveyance, authorised by this Chapter to be recorded, shall be dead, then the same may be proved before any offi- cer authorised to take the proof and acknowledgment of deeds, other than commissioners of deeds, and county judges not of the degree of counsel in the supreme court.^'' § 31. The proof of the execution of any conveyance in such case, shall be made by satisfactory evidence of the death of all the witnesses thereto, and of the handwriting of such witnesses, or any one of them, and of the grantor; all which evidence, with the names and places of residence of the witnesses examined before him, shall be set forth by the officer taking the same, in his certificate of such proof.^* § 32. Any conveyance proved and certified, pursuant to the two last sec- tions, may be recorded in the proper office, if the original deed be at the ST Repealed, , chap. 547, Laws of ^^ Repealed, chap. 547, Laws of 1896. 1896. Proof where Witnesses Dead. 813 same time deposited in the same office, there to remain, for the inspection of all persons desiring to examine the same. ^9 § 33. The recording and deposit of any conveyance, proved and certified according to the provisions of the three last sections, shall be constructive notice of the execution of such conveyance, to all purchasers subsequent to such recording; but such proof, recording, or deposit, shall not entitle such conveyance, or the record thereof, or the transcript of such record, to be read in evidence. •'•' Note on Section 263. The foregoing section of this act relates to proof for the purpose of the recording of conveyances, and not to their efifect as evidence in judicial proceedings.^^ This section is predicated of an unusual set of circumstances, and in view of that fact unusual care is directed to be observed in proving such deeds. The proof is not to be made before a commissioner of deeds, a notary public or a justice of the peace. It follows that such proof can be made, if within the State, only before the other officers mentioned in section 248 of this act.*^ It is apparent that if de- ceased witnesses to a deed were in their lifetime hostile to persons in adverse possession, a deed proved under this section might be well proved for the purpose of being recorded, and yet inadequately proved for the purpose of establishing a conclusive title under it.*' 58 Repealed, chap. 547, Laws of *i Cf. Brown v. Kimball, 25 Wend. 1896. 259 ; Borst v. Empie, s N. Y. 33. 60 Repealed, chap. 547, Laws of ^^ Supra, p. 772- 1896. 63 Cf. Code Civ. Proc, § 936. 814 Recording Books. § 264. Recording books — Different sets of books must be provided by the recording officer of each county, for the recording of deeds and mortgages; in one of which sets, he must record all conveyances and other instruments absokite in their terms delivered to him, pursuant to law, to be so recorded, which are not intended as mortgages, or securities in the nature of mortgages, and in the other set, such mortgages and securities delivered to him. Formerly i Revised Statutes, 756, section 2: § 2. Different sets of books shall be provided, by the clerks of the several counties, for the recording of deeds and mortgages; in one of which sets, all conveyances absolute in their terms, and not intended as mortgages, or as securities, in the nature of mortgages, shall be recorded; and in the other set, such mortgages and securities shall be recorded.^* Effect of Record in Wrong Book. If a deed of conveyance is re- corded in the liber of mortgages, it is not operative as notice.^' Mortgages. A deed absolute on its face, but accompanied by an unrecorded separate instrument of defeasance, or by some condi- tional bye-agreement operating as a defeasance, must be recorded as a mortgage to be effective as notice.®^ But not every condition is a defeasance for the purposes of this section.*'' Indexes and Indexing. The index of libers of conveyances or mort- gages is, however, no part of the record under this act, or its pro- totype,*^ and a failure to index a recorded conveyance or a mistake in indexing, does not destroy its effect as notice.*^ The purchaser duly delivering an instrument for record is not responsible for the errors of the clerk.^" For cognate cases see those cited under section 270 of this act. 8* Repealed, chap. 547, Laws of Kraemer v. Adelsberger, 122 id. 467, 1896. 476; Holmes v. Grant, 8 Paige, 243, «5 § 269, The Real Prop. Law ; Gil- 260. lig V. Maas, 28 N. Y. 191 ; Stoddard v. ** Mutual Life Ins. Co. v. Dake, Rotten, 5 Bosw. 378; The Bank for i Abb. N. C. 381; affd., 87 N. Y. 257. Savings v. Frank, 45 N. Y. Super. Ct. ^ Mutual Life Ins. Co. v. Dake, 87 404; Hoschke v. Hoschke, 42 Misc. N, Y. 257; Bedford v. Tupper, 30 Rep. 125. And see cases cited under Hun, 174. Cf. Gibson v. Thomas, § 269, The Real Prop. Law. 85 App. Div. 243. «6 § 269, The Real Prop. Law ; ""^ Simonson v. Falihee, 25 Hun, Decker v. Leonard, 6 Lans. 264; 5"°; Peck v. Mallams, 10 N. Y. 509. Howells v. Hettrick, 13 App. Div. 519. Cf. Muehlberger v. Schilling, 366. 3 N. Y. Supp. 70s; s. c, 19 N. Y. St. «''Macauley v. Porter, 71 N. Y. Rep. i; Gibson v. Thomas, 85 App. 173 ; Randall v. Sanders, 87 id. 578 ; Div. 243. Indexes. 815 § 265. Indexes — Each recording officer must provide, at the expense of his county, proper books for making general indexes of instruments recorded in his office, and must form indexes therein, so as to afford correct and easy reference to the books of record in his office. There must be one set of indexes for mortgages or securities in the nature of mortgages, and another set for conveyances and other instruments not intended as such mortgages or securities. Each set must contain two Hsts in alphabetical order, one consisting of the names of the grantors or mortgagors, followed by the names of their grantees or mortgagees, and the other list consisting of the names of the grantees or mortgagees, followed by the names of their grantors or mortgagors, with proper blanks in each class of names, for subsequent entries, which entries must be made as instruments are delivered for record. This section, so far as relates to the preparation of new indexes, shall not apply to a county where the recording officer now has general numerical indexes. A recording officer who records a conveyance of real property, sold by virtue of an execution, or by a sheriff, referee or other person, pursuant to a judgment, the granting clause whereof states whose right, title or interest was sold, must insert in the proper index, under the head " grantors," the name of the officer executing the conveyance, and of each person whose right, title or interest is so stated to have been sold.^^ Formerly chapter 199, section i, Laws of 1843: § I. The clerks of the several counties in this state, and the register of the city and county of New York, in those counties in which general indices of deeds and mortgages have not been made and preserved, according to the act passed April 18, 1826, shall provide proper books for making such general indices, and shall form indices therein in such manner as to afford correct and easy reference to the several books of record in their offices respectively. There shall be one book for deeds and another for mortgages. In each book there shall be made double entries, or two lists of names in alphabetical order. In one shall be set the names of the grantors or mort- gagors, followed by the names of their grantees or mortgagees ; and in the other, the names of the grantees or mortgagees, followed by the names of the grantors or mortgagors, leaving proper blanks between each class of names for subsequent entries; and in those counties in which indices were made ''I The last paragraph is new. See Revision to this section, Appendix I, note of Commissioners of Statutory infra. 816 Indexes. under the said act of April i8, 1826 and have been preserved, the several clerks shall complete the same by bringing them down to the present time, and in either case, the said clerk shall keep the said indices complete by adding to the lists as deeds and mortgages shall be sent in to be recorded.^2 Note on Section 265, Supra. It was stated under the preceding section that the clerk's failure to index a recorded conveyance, or a mistake in indexing same, does not destroy its effect as notice to subsequent purchasers.''^ Indexes in New York and Brooklyn. The laws concerning indexes in the city of New York were embodied in the Consolidation Act.''* The existing law regnlating the block system for the borough of Manhattan dates from 1887.''^ It provides for indexes.''® The law regulating indexes and " block system " in the city and borough of Brooklyn dates from 1894.'''' Indexes and Indexing. As the index of libers of conveyances or mortgages is no part of the record under this act, and those from which it is derived, a failure to index a conveyance, duly left for record, does not destroy the effect of the instrument, so entitled to be recorded, as notice.''® ■^2 Repealed, chap. 547, Laws of 16, 17 ; Laws of 1893, chap. 536 ; et 1896. vide infra, p. 832. T3 Supra, p. 814. ''^Laws of 1894, chap. 365 ; amended, ■?* Laws of 1882, chap. 410, § 1752; Laws of 1893, chaps. 71, 739, and ,by Laws of 1888, chap. 321. Laws of 1896, chap. 754; Matter of ■^6 Laws of 1887, chap. 718 ; Laws of Kenna, 98 Hun, 178. 1889, chap. 349, and see next note. '^^ Droge v. Cree, 14 N. Y. Supp. T6 Laws of 1887, chap. 718; Laws of 300; Howells v. Hettrick, 13 App. 1889, chap. 349, §§ 8, 9, IS, 17; Div. 366; et supra, p. 814; et infra, amended. Laws of 1890, chap. 166; p. 832. Laws of 1892, chap. 512, §§ I4, IS> Order of Recording. 817 § 266. Order of recording — Every instrument, entitled to be recorded, must be recorded by the recording officer in the order and as of the time of its delivery to him there- for, and is considered recorded from the time of such delivery. Formerly i Revised Statutes, 760, section 24: § 24. Every conveyance entitled by law to be recorded, shall be recorded in the order, and as of the time, when the same shall be delivered to the clerk for that purpose, and shall be considered as recorded, from the time of such delivery.^* Note on this Section. Similar statutes to i Revised Statutes, 760, section 24, were enacted at an early date in this State.*" What Constitutes a Recording under the Statute. A leaving of a con- veyance with the clerk or register (at least, with instructions to record it and payment of fees) completes the record,^^ and a failure on the part of the officer ought not to prejudice a party who has complied with the statute.*^ Mandamus. When the right is clear a clerk or other recording officer can be compelled by mandamus to record an instrument duly entitled to be recorded.^^ The statute is mandatory, and the recording officer is under an official obligation to obey it. ™ Repealed, chap. 547, Laws of ^^ Droge v. Cree, 14 N. Y. Supp. 1896. 300. *" Chap. 15s, Laws of 1801 ; i K. & 83 People ex rel. Bennett v. Miller, R. 478, § 5 ; I R. L. 369, § s '> chap. 39 Hun, 463 ; People ex rel. Lewko- 4S, Laws of 1822 ; Jackson ex dem., witz v. Fitzgerald, 29 Abb. N. C. 471 ; fctc. V. Van Valkenburgh, 8 Cow. 260. Matter of Wadsworth, 27 Misc. Rep. 81 Simonson v. Falihee, 25 Hun, 264. 570; Mutual Life Ins. Co. v. Dake, 87 N. Y. 257, 264. '52 818 Certificatf to be Recorded. § 267. Certificate to be recorded. — The certificate of the ac- knowledgment or proof of the execution of an instrument, and the certificate authenticating the signature or seal of the officer so certifying, or both, if required, must be recorded together with the instrument so acknowledged or proved; otherwise neither the record of the instrument nor a transcript thereof can be read in evidence. Formerly i Revised Statutes, 759, section 20: § 20. The certificate of the proof or acknowledgment of every convey- ance, and the certificate of the genuineness of the signature of any judge or commissioner, in the cases where such last mentioned certificate is required, shall be recorded, together with the conveyance, so proved or acknowledged; and unless the said certificates be so recorded, neither the record of such conveyance, nor the transcript thereof, shall be read, or received in evidence.** Observation on Section 267, Supia. This section not only furnishes a mandate to the recording officer to record the certificates on conveyances, but it also prescribes the penalty for a failure to record certificates on such conveyances, viz., that it disentitles the record to be read in evidence. How far the omission to record a certificate may destroy the effect of a deed, otherwise duly recorded and indexed, as construc- tive notice to subsequent purchasers, presents quite a different question, and one that ought not to be speedily dismissed as adjudicated.*^ A conveyance, which is improperly executed, although valid inter partes and in fact recorded, has been held to be inoperative as notice,** so strict is the statute. ** Cf. Laws of 1818, p. 44, § s ; I R. Armstrong v. Combs, 15 App. Div. S. 7S9, § 20; repealed by chap. 547, 246; § 241, The Real Prop. Law. Laws of 1896. ** Irving v. Campbell, 121 N. Y. 88Dingley v. Bon, 130 N. Y. 607; 353; $ 241, The Real Prop. Law, sed vide supra, pp. 754. 792, 793; supra. Time of Recording. 819 § 268. Time of recording — The recording officer must make an entry in tiie record, immediately after the copy of every instrument recorded by him, stating the hour, day, month and year, when it was recorded, and must indorse upon every such instrument a certificate, stating the time as aforesaid, when, and the book and page where, the same was recorded. Formerly i Revised Statutes, 760, section 25: § 25. The recording officer shall make an entry in the record, immediately after the copy of every conveyance recorded, specifying the time of the day, month and year, when the said conveyance was recorded, and shall indorse upon every conveyance recorded by him, a certificate, stating the time as aforesaid, when, and the book and page where, the same was recorded.87 Comment. This legislation is supplemental to that which affords priority of rights to those who obtain priority of record. That priority of record confers priority of lien is, however, subject to many exceptions before denoted, under the various sections of this article. Instruments Simultaneously Executed. Instruments executed at the same time, intended to be equal liens, obtain no preference over one another by reason of priority of record.*^ Purchase-Money Mortgages. But a purchase-money mortgage may not prevail over a conveyance first recorded.*' The former understanding, that the law does not take notice of fractions of days, although equity may, is entirely abrogated by the Recording Acts, and in many instances a few seconds priority of record will now confer priority of right on a bona fide purchaser for value, in all the courts of the State. 87 CA I R. L. 370, § s; I R. S. 760, ^ Supra, p. 758; Greene v. War- I 25, is repealed by chap. 547, Laws of nick, 64 N. Y. 220. 1896. ^^ Supra, p. 757; Lane v. Nicker- son, 17 Hun, 148. 820 Certain Deeds Deemed Mortgages. § 269. Certain deeds deemed mortgages. — A deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage ; and the person for whose benefit such deed is made, derives no advantage from the recording thereof, unless every writing, operating as a defeasance of the same, or explanatory of its being desired to have the efifect only of a mortgage, or conditional deed, is also recorded therewith, and at the same time. Formerly i Revised Statutes, 756, section 3: § 3. Every deed conveying real estate, which, by any other instrument in Vifriting, shall appear to have been intended, only, as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be con- sidered as a mortgage; and the person for whose benefit, such deed shall be made, shall not derive any advantage from the recording thereof, unless every writing, operating as a defeasance of the same, or explanatory of its being designed to have the efifect only of a mortgage, or conditional deed, be also recorded therewith, and at the same time.^o Note on this Enactment. The substance of this section dates from the year 1774.*' A similar provision was enacted in 1801 — " An act concerning Mortgages""^ — and re-enacted in 1813."^ Thence it passed into the Revised Statutes,"* and finally into the 269th section of this act. Record must Follow Statute. As registration or recording is notice only by virtue of some statute, the statute must be strictly followed to be effective.®^ Effect of Deed, Absolute on its Face, Inter Partes and as to Third Persons. If an absolute conveyance is intended as security, it is a mortgage, nevertheless.^ And this fact may, in some instances, be proved 80 Repealed, chap. 547, Laws of ^ James . v. Morey, 2 Cow. 246, 1896. revg. James v. Johnson, 6 Johns. Ch. 91 Chap. 39, Laws of 1774. 417; Irving v. Campbell, 121 N. Y. 82 Chap. 156, Laws of 1801 ; i K. & 353. R. 480, § 3. See Clute v. Robison, «« Clark v. Henry, 2 Cow. 324; Dey 2 Johns. 59S, on this act. v. Dunham, 2 Johns. Ch. 182, 189; 83 I R. L. 372, § 3; Laws of 1822, Kraemer v. Adelsberger, 122 N. Y. p. 262, § 3. See White v. Moore, 467; Weed v. Stevenson, Clarke Ch. I Paige, 5SI, 553; Brown v. Dean, 166; Mooney v. Byrne, 163 N. Y. 3 Wend. 208, on this act. 86; Reich v. Dyer, 91 App. Div. 240. 9* I R. S. 756, § 3. Certain Deeds Deemed Mortgages. 821 by oral evidence,®^ notwithstanding the instrument is recorded as a deed. But where a deed, absolute on its face, is accompanied by a separate defeasance or by some conditional bye-agreement, showing that the deed was intended as security, both must be recorded as a mortgage to protect the holders of such security against the claim of subsequent bona fide purchasers from the mort- gagor.^* But not every such conditional agreement is a defeas- ance, which brings a deed within this section, and requires both to be recorded as a mortgage.®^ The Record of an Agreement. The prior record of an agreement operating as an estoppel will not always prevail over a subsequent mortgage from the same person who made the agreement.^ Record of Assignment of Mortgage. An assignment of a mortgage need not be recorded as against a subsequent purchaser of the premises, but only as against a subsequent purchaser of the mort- gage itself.* *'' Cook V. Eaton, i6 Barb. 439 ; ham v. Mayer, 7 Misc. Rep. 250 ; Ensign v. Ensign, 120 N. Y. 655 ; Hoschke v. Hoschke, 42 Misc. Rep. Horn V. Keteltas, 46 id. 605; Spencer 125; and see cases cited supra under V. Richmond, 4 App. Div. 481 ; Far- § 264, The Real Prop. Law. mers' & Merchants' Bank v. Smith, ^ Macaulay v. Porter, 71 N. Y. 61 id. 315; Murray v. Sweasy, 69 id. 173; Randall v. Sanders, 87 id. 578; 45> SI. Kraemer v. Adelsberger, 122 id. 467, ^ Grimstone v. Carter, 3 Paige, 476 ; Holmes v. Grant, 8 Paige, 243, 421 ; Stoddard v. Rotton, 5 Bosw. 260 ; Brown v. Dewey, i Sandf . Ch. 378 ; The Bai k for Savings v. Frank, 56 ; Luesenhop v. Einsfeld, 93 App. 4S N. Y. Super. Ct. 404; Warner v. Div. 68. Winslow, I Sandf. Ch. 430; Weed v. 1 Oliphant v. Burns, 146 N. Y. 218. Stevenson, Clarke Ch. 166; Purdy v. ^ Supra, p. 757; Curtis v. Moore, Huntington, 42 N. Y. 334, 343 ; West- 152 N. Y. 159; Gibson v. Thomas, fall V. Westfall, 16 Hun, 541 ; Howells 85 App. Div. 243 ; et infra, p. 823. V. Hettrick, 13 App. Div. 366; Abra- 822 Recording Discharge of Mortgage. § 270. Recording discharge of mortgage A mortgage regis- tered or recorded must be discharged upon the record thereof, by the recording officer, when there is presented to him the certificate signed by the mortgagee, his personal representa- tive or assignee and acknowledged or proved and certified in like manner as to entitle a conveyance to be recorded, specify- ing that the mortgage has been paid or otherwise satisfied and discharged. The certificate of discharge, and the certifi- cates of its acknowledgment or proof must b'e recorded and filed; and a reference must be made to the book and page con- taining such record in the minute of the discharge of such mortgage, made by the officer upon record thereof. Note. — The foregoing section was enacted by chapter 490, Laws of 1903. As originally reported by the Commissioners of Statu- tory Revision the section was enacted in 1896, as follows : § 270. Recording discharge of mortgage. — A mortgage, registered or recorded, must be discharged upon the record thereof, by the re- cording officer, when there is presented to him a certificate signed by the mortgagee, his personal representative or assignee, and ac- knowledged or proved, and certified, in like manner as to entitle a conveyance to be recorded, specifying that the mortgage has been paid, or otherwise satisfied and discharged. The certificate of discharge, and the certificates of its acknowledgment or proof, must be recorded; and a refer- ence must be made to the book and page containing such record, in the minute of the discharge of such mortgage, made by the officer upon the record thereof.^ Formerly i Revised Statutes, 761, sections 28, 29: § 28. Any mortgage that has been registered or recorded, or that may hereafter be recorded, shall be discharged upon the record thereof, by the officer in whose custody it shall be, whenever there shall be presented to him, a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged, or proved, and. certified, as hereinbefore prescribed, to entitle conveyances to be recorded, specifying that such mortgage has been paid, or otherwise satisfied and discharged.* § 29. Every such certificate, and the proof or acknowledgment thereof, shall be recorded at full length; and a reference shall be made to the book and page, containing such record, in the minute of the discharge of such mortgage, made by the officer upon the record thereof.^ 3 Amended chap. 490, Laws of 1903. *> Repealed, chap. 547, Laws of * Repealed, chap. 547, Laws of i8g6. 1896. Recording Discharge of Mortgage. 823 Note on Section 270, Supra. The old statute (i R. L. 373*) was varied by the Revised Statutes so. as to require the filing of the " satisfaction." ^ Satisfaction of Mortgage. A mortgagor has a right, as a condition of payment, to a satisfaction-piece.* Executors and Trustees. A surviving executor, or administrator, is entitled to satisfy a mortgage.* But a trustee cannot discharge a mortgage in contravention of a trust expressed therein.^'* If im- properly discharged, an action lies to set aside the satisfaction.'^ The Clerk. A clerk's erroneous minute or memorandum of satis- faction of mortgage, on the margin of the page of the liber where the mortgage is recorded, does not aiifect the validity of the satis- faction itself, even as to bona fide purchasers who rely thereon.'^ A clerk may be compelled to satisfy a mortgage by mandamus, but only where the right is clear.^^ He cannot exact more proof than the law requires, even where the discharge or satisfaction is executed by an administratrix." Foreign Executor. An executor, whose letters testamentary were issued in another State, is a " personal representative " within the meaning of this section of this act, and he may execute a satisfac- tion of mortgage as therein provided, for the purpose of discharg- ing upon the record a mortgage made to his testator.^* Recorded Assignment of Mortgage; Notice to Whom. The record of an assignment of mortgage is notice of the rights of the assignee thereof as against subsequent acts of the mortgagee. It is not constructive notice to subsequent purchasers and incumbrancers of the land. Being on record, the assignment is notice that the mortgagee can no longer assign or discharge the mortgage.^* * § 4. 12 Viele V. Judson, 82 N. Y. 32. ■^ Note of Revisers to I R. S. 761, ^s People ex rel. Bennett v. Miller, §§ 28, 29. 39 Hun, 463; Matter of Wadsworth, 8 Halpin v. Phenix Ins. Co., 118 27 Misc. Rep. 264; People ex rel. N. Y. 165. Lewkowitz v. Fitzgerald, 29 Abb. N. 9 The People v. Keyser, 28 N. Y. C. 471. 226 ; Matter of Wadsworth, 27 Misc. 1* Matter of Wadsworth, 27 Misc. Rep. 264. Rep. 264. i** McPherson v. Rollins, 107 N. Y. i^ People ex rel. Lewkowitz v. Fitz- 316; Kirsch v. Tozier, 143 id. 390; gerald, 29 Abb. N. C. 471. Waterman v. Webster, 33 Hun, 611. ^^ Supra, p. 757; Curtis v. Moore, 11 Weaver v. Edwards, 39 Hun, 233. 152 N. Y. 159; Viele v. Judson, 82 id. 824 Recording Discharge of Mortgage. Unrecorded Satisfaction. An unrecorded satisfaction is inoperative as against a subsequent assignee of the mortgage, for value, with- out notice." Old Mortgage, when Deemed Paid without Satisfaction. After twenty years from the maturity of a mortgage under seal, it may be pre- sumed to be paid.^* But such presumption may be rebutted by proof of part payment, or by written acknowledgment, within twenty years, ^^ if such part payment is made by the person bound, or his agent.^ Ancient Mortgage Held Discharged. An ancient mortgage, presumed to be paid, may be discharged of record, by order of the court, upon a petition and proof, at the instance of those interested in the legal title to the real estate afifected.^^ 32; Bacon v. Van Schoonhoven, 87 Kaiser, 10 App. Div. 137; Forsyth v. id. 446; Frear v. Sweet, 118 id. 454, Leslie, 74 id. 517, 523. 464 ; Gibson v. Thomas, 85 App. Div. i' § 385, Code Civ. Proc. ; Martin v. 243. Cf. Lamed v. Donovan, 31 Abb. Stoddard, 127 N. Y. 61. N. C. 308. See § 271, The Real Prop. 20 Murdock v. Waterman, 145 N. Y. Law, for exception to the rule "that 55; Mack v. Anderson, 59 N. E. 289 recording constitutes notice." (N. Y. 1901). 1'' Gibson v. Thomas, 85 App. Div. ^^ Chap. 287, Laws of 1901, amend- 243. ing § I, chap. 365, Laws of 1862 as 18 § 381, Code Civ. Proc. ; Martin v. amended. Stoddard, 127 N. Y. 61; Katz v. Recording Satisfaction in Cities of First Class. 825 270a. Recording discharge of mortgage in counties em- braced in cities of first class — In counties wholly em- braced in a city of the first class, no mortgage shall be discharged of record, unless in addition to the certificate provided and required by the preceding section, there shall be presented to the recording officer for cancellation the original mortgage, or a certified copy of an order made and entered as hereinafter provided. The said officer shall, at the time of the discharge of said mortgage, cancel said original mortgage by effacing the signatures thereto, with- out obliterating the same, and shall file the same in his office and keep the same so filed for the term of ten years. If for any reason said mortgagee, his personal representa- tive or assign cannot produce said original mortgage, the said officer shall not discharge said mortgage until there shall be delivered to him a certified copy of an order made and entered as hereinafter provided, which order shall be recorded and filed with the certificate of discharge, or the substitute for said certificate of discharge hereinafter re- ferred to, and a reference must be made to the boolc and page containing such record in the minute of the discharge of such mortgage, made by the officer upon the record thereof. Where the mortgage shall have been lost or de- stroyed, any person having any interest in securing the discharge of the same may apply to the Supreme Court or the County Court in, or of the county in which property affected by the mortgage, or any part thereof, is situated, upon a petition duly verified, containing the name and address of the owner of the property covered by the mort- gage, the name and address of the owner of the bond and mortgage, to the best of petitioner's knowledge and belief, and the owner thereof as appears of record, a full description of the mortgage and of any assignments thereof, that may appear upon the record, including the names of the mort- gagor, mortgagee, assignor, assignee, date, amount, and the place, book, page and time ol record of said mortgage and any assignments thereof, and a description of the prop- erty affected thereby, and showing the loss or destruction of the mortgage, and the interest of the petitioner in the property or the mortgage, for an order dispensing with the production of the said mortgage and directing the dis- charge thereof. Eight days' personal notice of the appli- cation for such order shall be given to the then present 826 Recording Satisfaction in Cities of First Class. owner of the real estate and the mortgagor, the mortgagee, his or their personal representatives, heirs, successors or assigns as the case may require, except that where any of the parties upon whom service is herein required to be made cannot with due diligence be personally served, the court, to which the petition is presented, may direct such mode of service as may appear proper. If sufficient cause be shown, the court may issue an order to show cause upon the petition returnable in less than eight days. Upon the return day of such notice or order to show cause, the court, upon due proof of service of the notice, or order to show cause, upon the parties above specified, and on further proof of the identity of the person presenting the petition, shall inquire in such manner as it may deem advisable, into the truth of the facts set out in the petition, and upon proof satisfactory to the court that said mortgage has been lost or destroyed and as to the identity of the mortgagee, his per- sonal representatives or assigns and such other proof in relation thereto as to the court may seem desirable, the court shall make an order dispensing with the production of the mortgage and directing its cancellation of record, as hereinabove provided. In case the mortgagee, his personal representatives or assigns shall not appear in court upon the return day of said notice or order to show cause, or shall refuse or neglect, if present, to give the certificate for discharge above specified, the court may direct the amount due upon said bond and mortgage to be paid to the ofiScer specified by law to hold court funds and moneys deposited in court in the county wherein the mortgaged premises are situated in whole or in part and the mortgage to be can- celled of record in all counties where any of the lands affected by said mortgage are situated upon the produc- tion of a certified copy of the order and the receipt of such officer showing that the amount of said mortgage has been deposited with him, which receipt shall be a substitute for the certificate of discharge above specified. If in the pro- ceedings had under and in pursuance of this act it shall appear to the satisfaction of the court that the principal sum and interest due upon said mortgage, or the bond accompanying the same has been fully paid, then the said deposit of money hereinabove provided for shall be dis- pensed with. The money deposited shall be payable to the mortgagee, his personal representative or assigns, upon an Recording Satisfaction in Cities of First Class. 827 order of the supreme or county court directing the pay- ment thereof to him, made upon such evidence as to his right to receive the same, as shall be satisfactory to the court. Comment. This section was not a part of The Real Property Law as originally passed. It was enacted by section 2 of chapter 490 of the Laws of 1903, and took effect on July first of that year. It expressly applies only to counties embraced in a city of the first class.^^ The production and cancellation of satisfied mortgages and their safe-keeping in the recorder's office for ten years are calculated to prevent frauds in great cities. Proceedings where Mortgage is Lost. The proceedings where the mortgage is lost, like all statutory proceedings, must be strictly pursued according to the statute. *2 Cities having a population of two hundred and fifty thousand, or more Article XII, Constitution of 1894. 828 Effect of Recording Assignment of Mortgage. § 271. Effect of recording assignment of mortgage. — The recording of an assignment of a mortgage is not in itself, a notice of such assignment to a mortgagor, his heirs or personal representatives, so as to invalidate a payment made by either of them to the mortgagee. Formerly i Revised Statutes, 763, section 41: i 41. The recording of an assignment of a mortgage, shall not be deemed, in itself, notice of such assignment to a mortgagor, his heirs or personal represen-tatives, so as to invalidate any payment made by them, or either of them, to the mortgagee.*^ Former Law. It was, before the Revised Statutes, the law that payment by mortgagor to mortgagee, after assignment by the latter, but before actual notice to the mortgagor, must be allowed to the latter.2* The Revised Statutes. The foregoing section of the Revised Stat- utes, therefore, conformed to the pre-existing law, and relieved mortgagors from the ordinary effect of Recording Acts, by declar- ing that such record should not be constructive notice to them.^ Section Refers to Certain Persons only. This section has no refer- ence to any other persons besides mortgagors, their heirs and personal representatives. It does not apply to purchasers of equi- ties of redemption.^' The mortgagor is not bound by subsequent assignments of the mortgage, without actual notice thereof, and payments by him to the holder of the mortgage, if made without actual notice, are protected even after a recorded assignment of such mortgage.''' Where a mortgagor pays to an assignee of a mortgage, the assignment not being recorded and no interest due, this section is no protection as against a prior assignee of such mortgage.^* Assignments of Mortgages, etc. For cases touching the record, and relative priorities, of mortgages, assignments of mortgages, etc., under this article, see under section 241 of this act.^* 23 Repealed, chap. 547, Laws of 1896. 409 ; O'Callaghan v. Barrett, 21 N. Y. 2* James v. Morey, 2 Cow. 246, 288. Supp. 368 ; Ely v. Schofield, 35 Barb. 25 Revisers' note to i R. S. 763, 330; Kelly v. Bruce, 17 Week. Dig. i 41 ; Brewster v. Carnes, 103 N. Y. 39 ; Van Keuren v. Corkins, 66 N. Y. 556; Barnes v. Long Island Real Es- 77; Title Guarantee & Trust Co. v. tate Co., 88 App. Div. 83. Weiher, 30 Misc. Rep. 250. Cf 28 Brewster v. Carnes, 103 N. Y. Davies v. Jones, 29 Misc. Rep. 253. 556; Larned v. Donovan, 31 Abb. N. 28 Dayies v. Jones, 29 Misc. Rep. C. 308, 313, 84 Hun, 533, 155 N. Y. 341- 253. 27 Pettus V. McGowan, 37 Hun, 29 Supra, p. 757. Recording Conveyances of Treasurer of Connecticut. 829 § 272. Recording of conveyances made by treasurer of Connecti- cut — . A conveyance of real property, executed at any time since the tenth day of March, eighteen hundred and twenty-five, by tlie treasurer of the state of Connecticut, acknowledged by him before the secretary of state of such state, and the acknowledgment of which is certified by such secretary of state under the seal of such state, in the manner required for the acknowledgment and certifi- cation of a conveyance within this state, may be recorded in the proper office within this state, without further proof thereof. Formerly i Revised Statutes, 760, section 21: § 21. All conveyances of real estate, executed since the tenth day of March, one thousand eight hundred and twenty-five, or hereafter to be exe- cuted, by the treasurer of the state of Connecticut, which shall be acknowl- edged by him before the secretary of state of the state of Connecticut, and the acknowledgment of which, shall be certified by the said secretary, under the seal of the said state, in the manner herein prescribed, may be recorded in the proper offices within this state, without further proof thereof; and every such conveyance, or the record thereof, or the transcript of such record, duly certified, may be read in evidence, as if such conveyance had been acknowledged before a justice of the supreme court.^o Note. The Legislature of this State, by an act passed March 12, 1813,'''^ rendered valid all conveyances of real estate within this State, made to the State of Connecticut, for the security and bene- fit of the school fund thereof, and authorized the same to be con- veyed by the State of Connecticut. In 1825 the act of 1813 was amended by the Legislature of New York, and section 2 of such act provided " that all deeds or other conveyances of real estate to be executed by the treasurer of said State of Connecticut, and which shall be acknowledged before and certified by the secretary of said State, under the seal thereof, may be recorded in the proper office of this State." '^ 30 See chap. 29, Laws of 1825, at p. ^i Laws of 1830, p. 80. 35, for the original enactment, i R. '* Chap. 29, Laws of 1825. S. 760, § 21, is now repealed : Laws of 1896, chap. 547. 830 Revocation to be Recorded. § 273. Revocation to be recorded. — A power of attorney or other instrument, recorded pursuant to this article, is not deemed revoked by any act of the party by whom it was executed, unless the instrument containing such revo- cation is also recorded in the same office in which the instrument containing the power was recorded. Formerly i Revised Statutes, 763, section 40: § 40. No letter or other instrument so recorded, shall be deemed to be revoked by any act of the party to whom it was executed, unless the instru- ment containing such revocation, be also recorded in the same office, in which the instrument containing the power was recorded.^s Power of Attorney, when Revoked. A power of attorney is revoked as to third persons only from the time they have notice of the revocation. To revoke a power of attorney duly recorded, it is necessary as to third persons to record the revocation.^* In another State, it has been held, under a similar statute, that a recorded power of attorney to convey lands remains in force as to purchasers in good faith, without notice, from the attorney, though the grantor himself, in the meantime, conveys the same lands by a deed which remains unrecorded.^® Power of Attorney. A power to convey lands is within the re- cording act, and must be recorded to affect subsequent purchasers from the grantor.^* 33 Repealed, chap. 547, Laws of 35 Gratz v. Land & Imp. Co., 82 Fed. 1896. 381. 3* Williams v. Birbeck, Hoff. Ch. 36 § 240, The Real Prop. Law; 359. Paolillo V. Faber, 56 App. Div. 241. Penalty for Using Long Forms of Covenants 831 § 274. Penalty for using long forms of covenants. — The recording officer of any county may charge for the record- ing of an instrument containing any of the covenants mentioned in sections two hundred and eighteen and two hundred and nineteen of this chapter, at large, instead of the short forms thereof, in said sections contained, the sum of five dollars in addition to the fees chargeable by law for such recording. Formerly chapter 475, Laws of 1890, section 7: § 7. The register or county clerk of the county of New York and the county of Kings shall be entitled to charge for the recording of any instru- ment containing the above-mentioned covenants, or any of them at large, instead of the short forms thereof, in this act contained, the sum of five dollars in addition to the fee chargeable by law for such recording.^T Note on this Section. For the short forms of covenants and the construction thereof, see article VII of this act.^® This section is a survival of chapter 475, Laws of 1890, entitled, "An act to pro- vide for short forms of deeds and mortgages." The original act was designed to encourage shorter forms of conveyances than those so long employed in this State. To attain this object, cer- tain sentences when employed in grants of freehold interests in real estate were by statute declared to mean the same as the longer set of words, theretofore commonly employed in conveyances of freeholds in New York.^* The substance of the act in question has now been re-enacted in The Real Property Law and the act of 1890 repealed.** Construction of Section 274, Supra. Section 274 prescribes the pen- alty for using longer forms than those prescribed in sections 218 and 219 of this act. As in the case of all penal laws, this section cannot be extended by implication to sections 235, 236 and 227*0 of this act, prescribing construction of certain short forms of covenants in mortgages on leases. But without the penalty the shorter forms of mortgages on leases are now likely to be employed. 37 Repealed, chap. 547, Laws of 39 §§ 218, 219, The Real Prop. Law, 1896. pp. 682, 684, supra. 38 §§ 218, 219, 220, 221, 222, 223. 40 Added by chap. 338, Laws of The Real Prop. Law. 1898, to The Real Prop. Law. 832 Certain Acts not Affected. § 275. Certain acts not affected. — Nothing contained in this article repeals or affects any act providing for recording and indexing instruments affecting real property in the city of New York, according to city blocks or other limited areas. Note. This section is new.*^ The acts not to be affected by this article are generally referred to under section 265 of this act.*^ Block System. In 1887 " An act to provide for the recording and indexing of conveyances and instruments relating to land in the city of New York, according to limited areas," *^ was passed. This act made provision for the " block system " and for the regis- tration and execution of conveyances according to that system. In 1888 the operation of such act was extended.** In 1889 an act was passed regulating the recording and indexing of instruments affecting land in the city of New York according to the " block system." *' These acts have been subsequently amended*^ or supplemented.*'^ 41 Note of Commissioners of Statu- ** Chap. 321, Laws of 1888. tory Revision to this section, Appen- *s Chap. 349, Laws of 1889. dix I, infra. **Chap. 166, Laws of 1890. *2 Supra, p. 815. *■' Chap. 412, Laws of 1892 ; chap. *3Chap. 718, Laws of 1887. 536, Laws of 1893. Action to Cancel Records. 833 § 276. Actions to have certain instruments cancelled of record. — An owner of real property or of any undivided part thereof or interest therein, may maintain an action to have any recorded instrument in writing relating to the same, other than those required by law to be recorded, declared void or invalid, or to have the same cancelled of record as to said real property, or his undivided part thereof or interest therein. Formerly chapter 530, Laws of 1880, section i, 2: Section 1. When any agreement, contract or instrument in writing, relating to real estate, other than those required by law to be recorded, sliall have been recorded, or shall be hereafter recorded in the office of the clerk or register of any county in this state, any owner of such real estate, or of any undivided part thereof, or of any interest therein, who claims that agreement, contract or instrument in writing is invalid or void, or that the same cannot be enforced as against him, either in whole or in part, may bring and maintain, in any court of competent jurisdiction, an action for the purpose of having such agreement, contract or instrument in writing declared void, or invalid, or for the purpose of being relieved therefrom and to have the same canceled or discharged of record, as to said real estate or his undivided part thereof or interest therein, either wholly or as to such portion of such agreement, contract or instrument in writing as may be void or invalid, or which cannot be enforced as against him.*8 § 2. This act shall take efifect immediately.** Former Law. Prior to the foregoing enactment in 1880, the record of a contract of sale of lands was ineffectual, except to preserve evidence. The record thereof was not constructive notice and an action did not lie to cancel it as a cloud on title. ^^ When Action Lies. An action lies independently of statute to cancel a forged deed," or a fraudulent deed.'^^ But not a deed void on its face.^^ A party out of possession may sustain such an action, only when authorized by statute, or where special grounds for equitable relief exist, aside from the mere allegation of title.^* *8 Repealed, chap. 547, Laws of 53 Cox v. Cleft, 2 N. Y. ii8;Dederer 1896. V. Voorhies, 81 id. 153. Cf. Sanders *9 Repealed, chap. 547, Laws of v. Down, 141 id. 422; Swarthout v. 1896. Ranier, 143 id. 499; Rapps v. Gott- 5* See cases cited supra, p. 767, lieb, 142 id. 164. under § 244, The Real Prop. Law. B4 Moores v. Townshend, 102 N. Y. 51 Remington Paper Co. v. O'Dough- 387. Cf. Trustees v. Bowman, 136 erty, 81 N. Y. 474. id. 521. B2Lattin v. McCarty, 41 N. Y. 107. S3 834 Guilty Officers Liable for Damages. § 277. Officers guilty of malfeasance liable for damages. — An officer authorized to take the acknowledgment or proof of a conveyance or other instrument, or to certify such proof or acknowledgment, or to record the same, who is guilty of malfeasance or fraudulent practice in the execu- tion of any duty prescribed by law in relation thereto, is liable in damages to the person injured. Formerly i Revised Statutes, 762, section 35: § 35. Every judge, officer, or other person, within this state, authorised to take the aclcnowledgment or proof of any conveyance, and every clerk of any county, or his deputy, who shall be guilty of any malfeasance, or fraudulent practice in the execution of the duties prescribed to them by law, in relation to the taking, or certifying, the proof or acknowledgment, or the recording, or certifying, any record of any such conveyance, mort- gage, or instrument in writing, or in relation to the cancelling of any mort- gage, shall, upon conviction, be adjudged guilty of a misdemeanor, and be subject to punishment by fine and imprisonment, and shall also be liable in damages to the party injured.^s Civil Action. This section confers a right of action on a person injured by the dereliction of an officer authorized to take acknowl- edgments. But as long as the present policy of appointing such officers is pursued, this remedy is not likely to prove adequate. In some countries a notary is a high public official, who gives security for his official conduct. Contracts executed before him are less likely to be assailed for fraud and duress, thus decreas- ing litigation. His records are prima facie evidence in the courts. Note. The Penal Code now contains other penal provisions, formerly contained in the Revised Statutes. ^^ Omitted Sections. At present, sections 278 and 279 are wanting in this act, as enacted. 55 Repealed, chap. 547, Laws of 56 §§ 162, 163 and 164, Penal Code. 1896. The Real Property Law. 835 ARTICLE IX. The Descent of Real Property. Section 280. Definitions and use of terms; effect of article. > 281. General rule of descent. 282. Lineal descendants of equal degree. 283. Lineal descendants of unequal degree. 284. When father inherits. 285. When mother inherits. 286. When collateral relatives inherit; collateral relatives of equal degrees. 287. Brothers and sisters and their descendants. 288. Brothers and sisters of father and mother and their descendants. 289. Illegitimate children. 290. Relatives of the half-blood. 2goa.Inheritance from husband or wife. 291. Cases not hereinbefore provided for. 292. Posthumous children and relatives. 293. Inheritance, sole or in common. 294. Alienism of ancestor. 295. Advancements. 296. How advancements adjusted. § 280. Definitions and use of terms; effect of article The term " real property " as used in this article, includes every estate, interest and right, legal and equitable in lands, tenements and hereditaments except such as are determined or extinguished by the death of an intestate seized or possessed thereof, or in any manner entitled thereto; leases for years, estates for the life of another person; and real property held in trust, not devised by the beneficiary. " Inheritance " means real property as herein defined, descended according to the provisions of this article; the expressions "where the inheritance shall have come to the intestate on the part of the father " or " mother," as the case may be, include every case where the inheritance shall have come to the intestate by devise, gift or descent from the parent referred to, or from any relative of the blood of such parent. When in this article a person is described as living, it means living at the time of the death of the intestate from whom the descent came; when he is described as having died, it 836 Definitions; Use of Terms; Effect of Article IX. means that he died before such intestate. This article does not affect a limitation of an estate by deed or will, or tenancy by the curtesy or dower. Formerly i Revised Statutes, 754, sections 20, 21, 27, and i Revised Stat- utes, 75S, sections 28, 29; § 20. The estate of a husband as tenant by the curtesy, or of a wiSow as tenant in dovv'er, shall not be affected by any of the provisions of the Chapter, nor shall the same affect any limitation of any estate by deed or will.l § 21. Real estate held in trust for any other person, if not devised by the j person for whose use it is held, shall descend to his heirs, according to the provisions of this Chapter.^ § 27. The term '' real estate," as used in this Chapter, shall be construed to include every estate, interest and right, legal and equitable, in lands, tenements and hereditaments, except such as are determined or extinguished by the death of an intestate, seised or possessed thereof, or in any manner entitled thereto, and except leases for years, and estates for the life of another person ; and the term " inheritance," as used in this Chapter, shall be understood to mean real estate, as herein defined, descended according to the provisions of this Chapter.^ § 28. Whenever, in the preceding sections, any person is described as living, it shall be understood that he was living at the time of the death of the intestate, from whom the descent came; and whenever any person is described as having died, it shall be understood, that he died before such intestate.* § 29. The expressions used in this Chapter, " where the estate shall have come to the intestate, on the part of th'e father," or " mother," as the case may be, shall be construed to include every case where the inheritance shall have come to the intestate, by devise, gift, or descent from the parent referred to, or from any relative of the blood of such parent. ^' 6 Observations on Section 280, Supra. The Commissioners of Stat- utory Revision announce that they did not intend to change the antecedent law by this section of The Real Property Law.''^ But 1 RIepealed by chap. 547, Laws of 1896 ; The Real Prop. Law, art. 10, 1896; The Real Prop. Law, art. 10, infra. infra. ■* Repealed by chap. 547, Laws of 2 Repealed by chap. 547, Laws of 1896; The Real Prop. Law, art. 10, i8g6; The Real Prop. Law, art. 10, infra. infra. ® The meaning of this section is 3 Repealed by chap. 547, Laws of illustrated, infra, under § 284, The 1896; The Real Prop. Law, art. 10, Real Prop. Law. infra. ''Note to § 280, The Real Prop. * Repealed by chap. S47, Laws of Law, Appendix I, infra. Definitions; Use of Terms; Effect of Article IX. 837 by the transposition of clauses, necessary to combine so many sections in one, it has been feared by some persons that leases for years may now be included in the term " real property," con- trary to the former statute and practice.^ Such an interpretation seems, however, hardly probable. Tenants by Curtesy and in Dower. If we consider this strangely composite section of the new lav/ in the order of the re-enacted provisions, we shall first consider the section of the Revised Stat- utes saving tenancy by the curtesy, and the rights of tenant in dower.^ Tenancy by the curtesy was an incident of the old socage tenure,^" 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 the estate in her Hfetime, or devised it. The distinction seems to be that curtesy initiate is abolished sub modo, but that curtesy consummate survives all the reforms.'^ Tenants by curtesy cannot commit waste, or con- vey right to extract mineral oil from lands. ^^ Curtesy is a legal estate for life,^^ dependent on marriage, seisin, issue born alive, and death of wife.^* Pedis possessio, or actual entry, or seisin, on wild lands of the wife is not necessary in this State. ^^ A wife's dower was also an incident of the socage tenure.*® Estates in dower were ^'' extended to lands made allodial and * See a technical and professional ^3 Adair v. Lett, 3 Hill, 182. leading article in The New York 1* Graham v. Luddington, 19 Hun, Sun, Dec. 10, 1896. 246; Bilhngs v. Baker, 28 Barb. 343; 9 I R. S. 754, § 20. Jackson v. Jackson, 5 Cow. 74 ; Adair ^'^ Supra, p. 43. V. Lott, 3 Hill, 182; Dunscomb v. "Laws of 1782, chap. 2; 2 J. & V. Dunscomb, i Johns. Ch. 508. See as 67; I id. 245, § 4; I K. & R. 44; I R. to birth of a child delivered by a L. 52, § 4 ; Bertles v. Nunan, 92 N. Y. Caesarean operation, Marsellis v. 152, 160 ; Leach v. Leach, 21 Hun, Thalhimer, 2 Paige, 35 ; and as to 381 ; Matter of Clark, 40 id. 237 ; burden of proof, that child was bom Hatfield v. Sneden, 54 N. Y. 280; alive,' Bender v. Terwilliger, 48 App. Burke v. Valentine, 5 Abb. Pr. N. S. Div. 371. 164, 52 Barb. 412; affd., Ct. of Ap- IB jaj-i^jon y Selleck, 8 Johns. 262; peals, 6 Alb. Law Jour. 167; Wells Jackson v. Gilchrist, 15 id. 87, 118. V. Bctts, 45 App. Div. IIS, "8; Sed cf. Carr v. Anderson, 6 App. Spindler v. Gibson, 75 id. 444; Div. 6; Valentine v. Hutchinson, 43 Matter of Baird, 30 Misc. Rep. 668; Misc. Rep. 314. Valentine v. Hutchinson, 43 id. 314. l^ Supra, pp. 559, 560. l^Barnsdall v. Boley, 119 Fed. 191. 1^ 2 J. & V. 67, § 6. 838 Definitions; Use of Terms; Effect of Article IX. retained by the Revised Statutes.^* We have seen that by the common law ahens had neither dower nor curtesy.^* While such estates are saved by this section of the statute they are not de- scendible.^ Article IX, Supra, no Reference to Deeds or Wills. It was also ex- pressly 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.^^ 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.^ I Revised Statutes, 754, Section 27, Supra. Referring to I Revised Statutes, 754, section 27, above set forth, it will be observed that it employs certain terms of the common law, such as " lands," ^ " tene- ments " ^^ and " hereditaments," ^ and that without reference to that system of jurisprudence the statute cannot be construed. In general terms it first provides that every estate, interest and right 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: (i) 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.^ (2) Leases for years pass as at common law to personal representatives.^ (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 18 I R. S. 740; id. 754, § 20; supra. 2*2 J. & V. 68; 1 R. L. 74, § 4. pp. 539, 560. 25 See p. 87^ supra. ^^ Supra, p. 116. 26 See p. 88, supra. 20 Jackson ex dem. v. Hendricks, .•? 27 See p. 88, supra. Johns. Cas. 214. 28 yide infra, what estates and in- 21 I R. S. 754, § 20; supra, § 280. terest are not so limited. The Real Prop. Law. 29 Supra, p. 191, under § 23, The 22 See Revisers' notes to chap. 2, i Real Prop. Law ; Code Civ. Proc, R. S. 754, § 20. § 2712; Bennett v. Rosenthal, 11 Daly, 23 Revisers' note to i R. S. 754, 91. § 21, Appendix II, infra. Definitions; Use of Terms; Effect of Article IX. 839 grantee's heir as special occupant.^" So that this exception of the statute coincides with the statutory change in a rule of law. (4) Real property held in trust not devised by beneficiary. The third excep- tion embraces estates of beneficiaries, and also coincides with the J changes made by the Revised Statutes, for cestui que trust^^ thei/ ceased to have an equitable estate,^* the whole estate being vesteq 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 such an important part in the law of descent. The maxim, " non jus sed seizina facit stipitem," has been practically abrogated,^* as 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 article 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.^® The term death, in this section of the Real Property Law, applies only to natural, actual death ; it does not apply to civil death such as results from a sentence to imprisonment for life.^^ 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, has been before considered.^* A possibility of reverter is also said to be descendible, but a distinction is made between represen- tation and descent.^* 30 Supra, p. 193, under § 24, The S4 gee notes under next section of Real Prop. Law; Smith, Real & Pers. The Real Prop. Law, et supra, pp. Prop. 380. 107, 134, 562. 31 Vide supra, p. 838, under this 38 § 280 The Real Prop. Law ; 1 R. section. S. 754, § 27. 32 § 80, The Real Prop. Law. By 38 pioyd v. Carow, 88 N. Y. 560, an unhappy error of the Commis- 569; Lakey v. Scott, 15 Week. Dig. sioners of Statutory Revision, in 148; Griffeth v. Beecher, 10 Barb. using the word ' legal ' instead of 433. "equitable' estate, in § 80, The Real ST Avery v. Everett, no N. Y. 317. Prop. Law, it is open to the conten- ^ Supra, p. 311, under § 49, The tion that equitable estates of benefi- Real Prop. Law. claries are revived by this Revision. 39 Supra, p. 313, under § 49, The 33 § 91, The Real Prop. Law. Real Prop. Law. 840 Definitions; Use of Terms; Effect of Article IX. 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.*** Vested Remainders. Vested remainders are estates, and do not terminate virith the life of the vested remainderman, but descend unless devised.*^ Statutory Rules. Rights, titles and interests, which, by statute, pass to executors or administrators, of course do not descend under this article of the Real Property Law.*^ Fixtures. Fixtures annexed to the freehold descend to the heir.** But if annexed for the purposes of trade, they go to the executor or administrator.** Rents. Rents are divided into rent service, rent charge and rent seck.*^ Rent reserved on a grant in fee is a hereditament, descendible and devisable.*" As socage rents service are saved both by statute and the Constitution, it may be noticed that they are real property and descendible.*^ Rents reserved on terms of years, made after June 7, 1875, are now apportionable.*^ At com- mon law rent could not be apportioned in respect of time, but it is now otherwise.*® Rent can now be apportioned between heirs and executors and between life tenants and remaindermen, under the present law.^" Rents reserved to one deceased, which had accrued at the time of his death, if undevised, go to his executors 4" Barber v. Brundage, 50 App. *5 Supra, pp. 148, 149, 172, under Div. 123 ; Lakey v. Scott, 15 Week. § 20, The Real Prop. Law, and under Dig. 148; Lyons v. Ostrander, 167 N. § 21, The Real Prop. Law. Y. 135. Cf. Vanderheyden v. Crandall, *^ Supra, p. 172, under § 21, The 2 Den. at p. 25; Lese v. Miller, 71 Real Prop. Law, and p. 315, supra, App. Div. 19s ; Murray v. Miller, 85 under § 50, The Real Prop. Law ; Van id. 414. Rensselaer v. Read, 26 N. Y. at p. 41 § 49, The Real Prop. Law, supra, 564 ; Cruger v. McLaury, 41 id. 219, p. 311; Savage v. Pike, 45 Barb. 464; 222. Lakey v. Scott, 15 Week. Dig. 148. ^'^ Supra, p. 78; Const, of 1894, 42 § 2712, Code Civ. Proc, formerly art. i, § 11; Smith, Real & Pers. 2 R. S. 82,, § 6. Prop. 13. 43 2 R. S. 83, § 7 ; Ford v. Cobb, 20 48 § 2720, Code Civ. Proc. ; chap. N. Y. 344, 347; Potter v. Cromwell, 542, Laws of 1875. The latter act 40 id. 287 ; McRea v. Cent. Nat. Bank, was repealed by The Real Prop. Law, 66 id. 489. art. 10, infra. 44 § 2712, Code Civ. Proc. ; Mur- ** See observations, supra, p. 613, dock V. Gifford, 18 N. Y. 28. under § 192. The Real Prop. Law. 50 § 2720, Code Civ. Proc. Definitions; Use of Terms; Effect of Article IX. 841 or administrators." But the rents accrued after his death follow the reversion, and go to his heir or devisee as the case may be.^^ Crops. Grass and fruits, growing or annexed to the freehold, go to the heir^^ 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.^^ Pews, Vaults and Graves. Pews are incorporeal hereditaments, and go to heirs or devisees.^^ 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 here- ditaments, or usufructuary interests, and descendible.^* 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.®^ So, where mortgagor dies seised of real estate afterward sold under the mortgage, the surplus moneys are land, in so far as the mort- gagor's heirs or devisees are concerned.*^ Otherwise if the mort- gagor die after the sale.^ Lands Condemned. Land condemned remains land quoad the pri- vate owner, and descendible until appraisal. If the owner die before 51 § 2712, Code Civ. Proc. Church, 32 Barb. 42; Freligh v. Piatt, 52 Payn v. Beal, 4 Den. 405, 410 ; 5 Cow. 494. Dolph V. White, 12 N. Y. 296, 301; 80 Waters v. Stewart, i Cai. Cas. 47; Marshall v. Mosely, 20 id. 280, 283. Jackson ex dem., etc. v. Willard, 4 53 Supra, p. 87, under § i, The Real Johns. 41 ; Lansing v. Goelet, 9 Cow. Prop. Law; Kain v. Fisher, 6 N. Y. 346, 370; Hitchcock v. Harrington, 6 597; Matter of Chamberlain, 140 id. Johns. 290; Runyan v. Mersereau, Jr., 390; Warren v. Leland, 2 Barb. 613. 11 id. 534; Trimm v. Marsh, 54 N. Y. 54 Stall v. Wilbur, 77 N. Y. 158. Cf. 599, 604; Cox v. McBurney, 2 Sandf. Austin V. Sawyer, 9 Cow. 39. 561. 55 Cresson v. Stout, 17 Johns. 116; 6I Dunning v. The Ocean Nat. § 2172, Code Civ. Proc. Bank, 61 N. Y. 497. 56 § 2712, Code Civ. Proc. ; Stall v. 62 Tudor, Lead. Cas. Real Prop. Wilbur, 77 N. Y. 158. 992, note; Miller v. Miller, 22 Misc. 5T McNabb v. Pond, 4 Bradf. 7. Rep. 582. 58 Mitchell V. Thorne, 134 N. Y. 83 Dunning v. The Ocean Nat. 536. Bank, 61 N. Y. 497. 59 Richards v. Northwest Dutch 64Denham v. Cornell, 67 N. Y. SS6. -842 Definitions; Use of Terms; Effect of Article IX. appraisal, the award is realty, and descends ; if he die after appraisal, the award is personalty, and goes to the administrator of an intestate.*^ Conversion of Personalty. For the purposes of descent personal estate may be converted into 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.^' 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.®'' Proceeds of Sale of Infants' Lands. The proceeds of sale of lands belonging to infants, or other persons suh tutela and incompetent, ■ continue land for the purposes of descent, at least until the disability is removed and their election otherwise.^ Title by Descent Preferred to Devise. Where the heirs of testator are given by will the same estate or interest they would take by descent, their title is by descent, and not by devise.®^ I Revised Statutes, 755, Section 28. The cases bearing on the sub- stance of former i Revised Statutes, 755, sections 28 and 29, are given in the comments on other sections of this act.™ Intestate Succession. Degrees of kinship are reckoned in three ways : By going down, by going up, and by going sideways, 88 Ballou v. Ballou, 78 N. Y. 325. v. Babcock, 26 Misc. Rep. 90, 97; 66Stagg v. Jackson, i N. Y. 206; Matter of Traver, 161 N. Y. 54, 57; Horton v. McCoy, 47 id. 21; Hood v. Matter of Tatum, 61 App. Div. 513; Hood, 85 id. 561 ; Salisbury v. Slade, Matter of Hammond, 74 id. 547, SS7 ; 160 id. 278; Merritt v. Merritt, 32 Russell v. Hilton, 80 id. 178; Matter App. Div. 442, 448; Fletcher v. Ash- of Coolidge, 85 id. 295; Phoenix v. burner, i Bro. C. C. 447, is the prin- Trustees of Columbia College, 87 id. cipal case, i White & Tudor, Lead. 438, 444- Cas. in Eq. 968. Cf. Gourley v. ^ Code Civ. Proc, § 2359 ; Forman Campbell, 66 N. Y. 169. v. Marsh, 11 N. Y. 544; Matter of 67 White v. Howard, 46 N. Y. 144, McComb, 117 id. 378, 383; Wells v. 162; Hobson v. Hale, 95 id. 588; Seeley, 47 Hun, 109; Matter of Trowbridge v. Metcalf, S App. Div. Woodworth, S Dem. 156; Valentine 318, 321: Chamberlain v. Taylor, los v. Wettherill, 31 Barb. 6s5, 657. N. Y. 183; Matter of McComb, 117 69Pyatt v. Waldo, 85 Fed. 399; id. 378. (On all questions of conver- Buckley v. Buckley. 11 Barb. 43. sion and intent, see Ackroyd v. ™ For cases on i R. S. 755, § 29, Smithson, i White & Tudor, Lead, supra, see under § 284, infra, and Cas. in Eq. 1027, and notes) ; Clement? Morris v. Ward, 36 N. Y. 587, 593- Definitions; Use' of Terms; Effect of Article IX. 843 ex transversa, ex latere, or collaterally, as it is called. The kinship going up is that of ascendants ; the kinship coming down is that of descendants ; and the kinship reckoned sidewise is that of brothers and sisters and their issue, and of uncles and aunts and their issue.'^^ When an inheritance goes to the father or the mother of the intestate, it " ascends," not " descends ;" although " descends " is both in this statute and at common law used as the equivalent of " ascends " or of " intestate succession by an ascend- ant." '^^ By the law of New York, stated in this chapter, no col- lateral can inherit if there be either " descendants " or '' ascend- ants " of intestate, and no ascendant can inherit if there be de- scendants. Thus the three classes are reciprocally opposed or exclusive. The existing law of New York, stated in the succeed- ing sections of this statute, is very similar to the Roman law, as remodeled by Justinian in the ii8th and 127th Novels; and now that " adoption " is grafted on our law, the lawyer may find many more analogies in the civil law''* than in the common law, although the points of difference between the civil law and the law of New York are sufficiently obvious. Our present system also presents points of resemblance to primitive English or Saxon law,''* before the establishment of the feudal system ; but such similarity is barren of results of value to the student of the existing law in New York, and need only be noticed in passing. Statute of Distributions. This article relates only to devolution of title to lands, tenements and hereditaments on the death of the owner, seised thereof, intestate. It does not regulate the devolu- tion of title to things not, in law, lands, tenements or heredita- ments. Such devolution continues to be regulated by the Stat- ute of Distributions, as revised and amended.''^ 71 Cf. Just. Inst. 3, 6, pr. T4 Scrutton, Rom. & Eng. Law, pas- T2£. g., §§ 284, 285, The Real Prop. iim. Cf. 2 Black. Comm. 516. Law. Cf. Armstrong v. Moran, i 75 § 2732, Code Civ. Proc. Cf. Bradf. Surr. 314; Howard v. Barnes, Matter of Davenport, 172 N. Y. 454; 65 How. Pr. 122. Terry v. Dayton, 31 Barb. 519; Mat- 73 Vide infra, "Adoption," under ter of Thompson, 41 Misc Rep. 223; § 281. The Real Prop. Law. affd., 87 App. Div. 609. 844 General Rule of Descent. § 281. General rule of descent — The real property of a person who dies without devising the same shall descend: 1. To his lineal descendants. 2. To his father. 3. To his mother; and 4. To his collateral relatives, as prescribed in the following sections of this article. Formerly i Revised Statutes, 751, section i: Section i. After this Chapter shall take effect, the real estate of every person, v/ho shall die without devising the same, shall descend in manner following: 1. To his lineal descendants: 2. To his father: 3. To his mother: and 4. To his collateral relatives: Subject in all cases to the rules and regulations hereinafter prescribed.'^'' Title by Descent. Descent or hereditary possession is the title whereby a person, on the death of his ancestor," acquires his estate by right of representation.^* Title by descent is by opera- tion of law,™ and all canons of descent are regulated by law and are, therefore, juris positk'i.^ Title by descent is favored over title by purchase. ^^ The title to real estate in New York by descent is governed wholly by the law of New York — "lex rei sitcc.^^ Early Law of New York. Prior to independence of the Crown, the common law regulated in New York descendants ab intestato?^ ''S Repealed by chap. 547, Laws of ^l Buckley v. Buckley, li Barb. 43; 1896; The Real Prop. Law, art. 10, Henriques v. Stirling, 26 App. Div. infra. 3°. 35; Pyatt v. Waldo, 85 Fed. 399. 7T The term " ancestor " in this 82 Lynch v. Clarke, I Sandf. Ch. article includes collateral kinsmen. 583, 640; Story, Confl. Laws, § 448; McCarthy v. Marsh, S N. Y. 263; Bollermann v. Blake, 24 Hun, 187, Wheeler v. Clutterbuck, 52 id. 67; 189; Matter of Davenport, 172 N. Y. Conkling v. Brown, 8 Abb. Pr. (N. S.) 454, 457. Cf. Miller v. Miller, 91 id. 350, note; et vide infra, under § 290, 315. The Real Prop. Law. ^ Story on the Const. 77, and note, 784 Kent, Comm. 374; 2 Black, p 78; 4 Burge Commentaries on Co- Comm. 201. lonial and Foreign Law, 126; Jack- 79 2 Black. Comm. 201. son ex dem. Gomez v. Hendricks, 3 80 Matter of Mericlo, 63 How. Pr. Johns. Cas. 214. 62, 6$ ; Miller v. Miller, 18 Hun, 507, 5i6. General Rule of Descent. 845 Although New York was originally granted to the Duke of York to be held as of the King's Manor of East Greenwich in Kent, gavelkind as a rule of descents never prevailed in New York, as contended in a recent case. The object of stating this example in Kent was to assure tenants in the Province of New York that the tenure was in free and common socage and not by knight- service. It is probable that gavelkind, though the rule in Kent, never prevailed in the King's Manor of East Greenwich. Certainly primogeniture was the rule in New York prior to mdependence.** On the practical cessation of hostilities with England, the Legisla- ture immediately turned its attention to the condition of the law, and in the year 1782, an act was passed regulating descents and con- verting estates tail into fees simple.*'' This act, intei' alia, abol- ished, in effect, primogeniture as a rule of descents*^ within cer- tain degrees, and it made real estates partible inheritances among males and females, or divisible among all issue who were to hold as tenants in common. Failing issue, the estate was partible among collaterals, if not too remote, in like manner, to hold as tenants in common. In cases not provided for, the common law was still to regulate the inheritance or succession.*'^ The act of 1782 was defective,** and it was repealed, and its substance re-enacted in 1786, in better language and with some changes.** The act of 1786 admitted the father of an intestate into the suc- cession, failing lineal descendants, or issue of the body of the intestate ; but if the estate was deduced ex parte materna, the mother succeeded, failing such issue. FaiHng both issue of the body and parents, the estate under this act passed to collaterals as tenants in common. Thus, the common-law rule of impartible inheritances which had prevailed under the common law since the feudal settlement,^ was finally abrogated in New York in 84 See an article by this writer on 88 Jackson ex dem., etc. v. Van the " Old Rule of Descents in New Zandt, 12 Johns. 169; Medcef Eden's York, 61 Alb. Law Jour. 163, citing Case, 20 id. 483. authorities. 89 Laws of 1786, chap. 12; i J. & V. *5 Laws of 1782, chap. 2. 245. 86 Terry v. Dayton, 31 Barb. 519, 9O2 Black. Comm. 56. It was, how- 523. In certain remote cases primo- ever, some time subsequent to the geniture still prevails in this State. Conquest before the common law The Real Prop. Law, § 291 ; Hunt v. was fully determined in this respect. Kingston, 3 Misc. Rep. 309. 2 Hallam, Mid. Ages, 129. 87 § 291, The Real Prop. Law. 846 General Rule of Descent. almost all cases,"^ and new canons of descent were prescribed. The act of 1786 also changed the rule excluding collaterals of the half blood; it remained in force until the Revised Statutes finally remodeled the act of 1786 in much its present form.^^ The Common-Law Sules of Descent. As prior to the statute of 1782, the common law regulated descent of lands held by the socage tenure in New York,®* we may briefly consider its leading canons regulating such descent: (I) "Inheritance shall lineally descend to the issue of tlTe person who last died actually seised, in infinitum, but shall never lineally ascend." ** This rule was of purely feudal origin,®^ and founded at a time when the succession of the ablest persons to feuds was of paramount importance in the political economy of the State.®^ The importance of the actual seisin of the person last seised was a modification of the rule, that descent must be deduced from the first purchaser.*^ The importance of actual seisin in this canon depended in like manner originally on the law of feuds, and is referable to a time when " seisin " meant feudal investiture of the tenant,^® and not, as now, mere " possession " of an owner.®® In its primitive meaning, " seisin " was the best test of complete property or ownership, " jus proprie- tatis et possessionis." (II) The second canon was, " That the male issue should be preferred before the female." ^ This canon is also referable to the feudal law regulating succession to feuds. It is a modified or English form of the " Salic law " which excluded absolutely female succession.^ (Ill) The third canon was, " That 81 Vide infra, under § 290, The 4 Kent, Comm. 412; 2 Black. Comra. Real Prop. Law. 211-228. 92 I J. & V. 245; I Gr. 205; i K. & 96 Cf. Wright, Origin of Feudal R. 44; I R, L. 52, 305; I R. S. 750. Tenures, 15. Cf. Laws of 189s, chap. 1022. 97 2 Black. Comm. 228; Valentine v. 93 All the lands in New York were Wettherill, 31 Barb. 655, 658. held by this tenure until 1787. Then ^8 Supra, pp. 107, 134, 562. lands granted by the State were ^ Supra, pp. 134, 562; and under made allodial (2 J. & V. 67). The § 30, The Real Prop. Law (note) is Revised Statutes made all lands denoted the difference between seisin allodial, saving rents, escheats, etc. for purposes of descent and a title by (i R. S. 718, § 3). Supra, pp. 46, 69, purchase; supra, p. 226. gi j,^. 1 Watkins, Desc. 88; Cruise, Dig., 9*Watkins, Desc. 88; Cruise, Dig., tit. 29, chap. 3, § 16; 2 Black. Comm. tit. 29, chap. 3, § i; 2 Black. Comra. 212. Cf. Brown v. Burlingham, S 208; 4 Kent, Comm. 411; Torrey v. Sandf. 418. Shaw, 3 Edw. Ch. 356, 360. ^ 2 Black. Comm. 213. 9B Cruise, Dig. tit. 29, chap. 3, § IS; General Rule of -Descent. 847 where there are two or more males, in equal degree, the eldest only shall inherit, but the females altogether."^ This preference of eldest males is commonly called the " right of primogeniture." * It prevailed strictly in England, except in localities where some more antique system of law had prevailed by custom. It was the law in New York even after Independence, but prior to the act of 1782.'* The equal succession of females was also of English origin, and a modification of the feudal system of other countries. (IV) The fourth canon was, " That the lineal descendants in infini- tum of any person deceased shall represent their ancestor, that is, shall stand in the same place as the person himself would have done, had he been living." ® It was this legal conception of an inheritable " feud " that gave rise to the later conception of a " fee simple." '' This taking by representation is called succession per stirpes, or according to the roots, since each branch inherits the same share that their root or stirps whom they represent would have taken.* (V) The fifth canon or rule of descent was, " That on failure of lineal descendants or issue of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser, subject to the three preceding rules." ^ This rule was also evolved from the feudal law, regulat- ing succession to inheritable feuds, it being deemed proper to con- fine such succession to those of the blood of the first purchaser. But as it worked a hardship to those new feudatories who had no descendants, their collaterals were let into the succession by limit- ing the feud so as to be held as an ancient feud ; i. e., " ut feudum antiquum." ^" (VI) The sixth rule or canon of descent was, " That the collateral heir of the person last seised must be his next col- lateral kinsman of the whole blood." ^^ This exclusion of col- sWatkins, Desc. 89; Cruise, Dig., ''Supra, p. 6. tit. 29, chap. 3, § 17; 2 Black. Comm. ^ Co.; i Inst. lob. 214. 9 Watkins, Desc. 80; Cruise, Dig., * This purely feudal attribute of tit. 29, chap. 23, § 25 ; 2 Black, tenure survived the abolition of the Comm. 220; Valentine v. Wettherill, feudal system (12 Car. II, chap. 24) 31 Barb. 655, 658. where it originated. Sandys, History 1* 2 Black. Comm. 221 ; Hyatt v. of Gavelkind, 238; Hallam, Mid. Pugsley, 33 Barb. 373, 376. Ages. I, 129. 11 Watkins, Desc. 89 ; Cruise, Dig., ^ Supra, p. 845. tit. 29, chap. 23, i 45; 2 Black. 6 Watkins, Desc. 89; Cruise, Dig., Comm. 224; Valentine v. Wettherill, tit. 29, chap. 3, § 21; 2 Black. Comm. 31 Barb. 655, 658. 217. 848 General Rule of Descent. laterals of the half blood was also referable to the law regulating succession to feuds. It was the survival of the lords' attempt to limit such succession and promote escheats — escheats being one of the fruits of feudal tenure. (VII) The seventh and last canon or rule of descent was, " That, in collateral inheritances, the male stock shall be preferred to the female; that is, kindred derived from the blood of the male ancestor, however remote, shall be admitted before those from the blood of the female, however near, unless where the lands have, in fact, descended from the female.^^ Thus, the relations on the father's side are admitted in infinitum before those on the mother's side are admitted at all, and those of the father's father before those of the father's mother, and so on. All these rules were of feudal origin.^^ If we remem- ber that the person who last died seised is always the propositus at common law, it is not difficult to apply the rules given. The suc- cession to land is then in this order : (a) The male stock of the paternal line ; (b) the female stock of the paternal line ; (c) the male branches of the female stock of the paternal line ; (d) the female branches of the female stock of the paternal line; (e) the male stock of the maternal line ; (f) the female branches of the male stock of the maternal Hue; (g) the male branches of the fe- male stock of the maternal line; (h) the female branches of the female stock of the maternal line. Present Statutory Rules of Descent. The act of 1 782, as revised in 1786, and subsequently by the Revised Statutes, abrogated the common law in part and originated the rules of descent now prevailing in this State.^* These canons were only perpetuated by this article of The Real Property Law which professes to make no change in the antecedent law of descent.^® We may, therefore, consider first the general effect of the act of 1782, as revised in 1786, on the seven canons of the common law above set forth in l^Watkins, Desc. 89; Cruise, Dig., ^* Valentine v. Wettherill, 31 Barb, tit. 29, chap. 3, § 61; 2 Black. Comm. 655, 659; Laws of 1782, chap. 2; Laws 234. of 1786, chap. 12; 1 J. & V. 245; I Gr. 134 Kent, Comm. 412. But so was 205; i K. & R. 44; i R. L. 52, 305; i all the common law of land. For a R. S. 750; Laws of 1895, chap. 1022. time there was little common law of '^ Notes of Commissioners of Stat- much account, except that relating to utory Revision to article IX, infra, Und, as personal property was insig- Appendix L nificant in value. General Rule of Descent. 849 the text: The first canon, excluding the father, was changed. The second canon, preferring males to females, was abrogated partly, or as far as the statute actually prescribed a course of descents. The third, concerning the rule of primogeniture, was practically, although not entirely, abrogated.^^ The fifth was modified. The sixth, excluding relatives of the half blood, was reversed sub modo}'' The seventh, which had little application in New York, except as a rule of last resort in cases not provided for by the statute of 1786,^® was also abrogated. Section 281, The Real Property Law. Section 281 of this act is vir- tually the same as section i of chapter 2 of part II of the Revised Statutes on Descents.^* Both sections profess to be incomplete without reference to certain complementary sections of the re- spective statutes. Indeed, both of the sections in question so expressly state. Thus it is that this article^ of The Real Property Law embraces interdependent sections, the whole making one complete Statute of Descents.^^ In so far as section 281 of this act is concerned, it conserved one principal change, made in 1786, in the common law, viz., the right of the father of the intestate to inherit, failing lineal descendants; and one other change made in 1829 by the Revised Statutes, the recognition of the mother of intestate as entitled to inherit before collaterals.^ But the prin- cipal change made by this section, or by its prototype, the cor- responding section of the Revised Statutes, concerns the rule in the act of 1786, which required an heir to deduce title from the person last seised.^^* The act of 1786 perpetuated the common- law rule in this particular,^* and if the ancestor last seised was dispossessed by force or fraud, or was entitled to the fee under a contingent remainder or executory devise, and died before the estate vested in possession, the right or estate might go, accord- 16 Cf. The present rule, § 291, The w i R. S. 751, § I ; supra, p. 844. Real Prop. Law, and cases there 20 Art. 9. cited. 21 Miller v. Miller, 18 Hun, 507, 17 The Revised Statutes changed 516, 91 N. Y. 31s, 317; Matter of the rule in toto. § 290, The Real Prop. Davenport, 172 id. 454, 457. Law. 22 See note to i R. S. 751, § i. Ap- is See Jackson ex dem., etc. v. pendix IL infra. Green, 7 Wend. 333, 335, 336, where ^ Supra, p. 847. the changes by the act of 1786 are 24 l^ws of 1786, chap. 12; i R. L. very perspicuously and concisely of 1813, p. 52. stated. 54 850 General Rule of Descent. ing to the English rule, to the eldest male heir, in exclusion of others equally entitled as heirs by the statute of 1786, where the intestate died seised.^^ Thus actual or constructive seisin of the ancestor must be shown by the heir to succeed under the act of 1786.28 The Revised Statutes, and this section in turn, changed this rule, and actual or constructive seisin^'' of the ancestor need no longer be shown to entitle the heir to succeed to any estate, legal or equitable, of the ancestor.^ It is sufficient if the ancestor had title either by purchase or descent. This section is now changed by chapter 106, Laws of 1904, which admits grandparents into the line of succession in default of heirs specified in subdivisions i, 2, 3, and 4.^® Widow. In 1895 it was attempted to include a widow of an intestate among those entitled to take real property by descent.^** But the statute was repealed before it went into effect.^^ In 1889, a widow was given by statute the use of an interest not to exceed in value $1,000, and in case the intestate left no children, this use ripened into a fee.^^ But this statute was also speedily repealed.^* Table of Descents. Section 281 of this act furnishes a table of de- scents, which, beyond lineal descendants, is, as far as it goes, at variance with the common-law rules before mentioned.^* The table of descents, as modified by succeeding sections, prescribes the following course of descents : (a) Lineal descendants, in infini- tum; (b) ascendants specified; (c) collaterals specified; (d) grand- parents;^^ (e) collaterals entitled as at common law.^^ 25 See Revisers' note to i R. S. 751, Cf. Durando v. Durando, 23 id. 331; § I, Appendix II, infra; Jackson ex Van Rensselaer v. Poucher, i Den. dem., etc. v. Hendricks, 3 Johns. 35 ; et sufira, pp. 107, 562, 839. Cas. 214; Bates v. Schraeder, 13 ^8 § 280, The Real Prop. Law; Johns. 260; Jackson ex dem., etc. v. Dodge v. Stevens, 105 N. Y. at p. 590; Hilton, 16 id. 96. supra, pp. 839, 849. 26 "Seizina facit siipitem," was the 29 yi^jg § 288, infra. common-law maxim. 2 Black. Comm. so Laws of 1895, chap. 171. 2og. ^^ Laws of 1895, chap. 1022. 27 This term " seisin " has under- 32 Laws of 1889, chap. 406. gone great change in modern law, S3 Laws of 1890, chap. 173. and now means ownership of an es- ^* Supra, pp. 846, 847. tate of freehold, i. e., lawful posses- 35 yidg § 288, The Real Prop. Law, sion, or even right of possession, as amended by chap. 106, Laws of Matter of Dodge, 105 N. Y. 585, S9i ; 1904. Bedell v. Shaw, 59 id. at p. 49! ^SHunt v. Kingston, 3 Misc. Rep. .309. General Rule of Descent. 851 Illegitimate and Adopted Children. It is to be remembered that the class just indicated by (a) " lineal descendants," has by the later law of this State been artificially augmented so as to include chil- dren formerly illegitimate, but now legitimated per subsequens matri- monhim,^'' and also children made such by adoption.^* Adoption. A new element in the law of descents has been intro- duced by the authorized adoption of children, under the statute of 1873,^^ amended in 1887, as follows:^" § 10. A child, when adopted, shall take the name of the person adopting, and the two thenceforth shall sustain toward each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation, (including)*! the right of inheritance, and the heirs and next of kin of the child so adopted shall be the same as if the said child was the legitimate child of the person so adopting, except that as respects the passing and limitation over of real and personal property, under and by deeds, conveyances, wills, devises and trusts, dependent upon the person adopting dying without heirs, said child adopted shall not be deemed to sustain the legal relation of child to the person so adopting so as to defeat the rights of remainderman, and in case of the death of the person so adopted the person so adopting as above provided shall, for the purpose of inheritance, sustain the relation of parent to the person so adopted. Repeal of the Statutes of 1873 and 1887. The statutes just set out above remained in force until October i, 1896, when they were repealed and their substance re-enacted in " The Domestic Rela- tions Law." *^ The section of the latter law relative to descents to adopted children is as follows: § 64. Effect of Adoption. Thereafter the parents of the minor are relieved from all parental duties towards, and of all responsibility for, and have no rights over such child, or to his property by descent or succession. The child takes the name of the foster parent. His rights of inheritance and succession from his natural parents remain unaffected by such adoption. The foster parent or parents and the minor sustain toward each other the legal relation of parent and child and have all the rights, and are subject to all the duties of that relation, including the right of inheritance from each other, and such right of inheritance extends to the heirs and next of 37 § 289, The Real Prop. Law; ^o Laws of 1887, chap. 703. Smith V. Lansing, 24 Misc. Rep. 566; *l So in original act, including Davis V. Davis, 27 id. 455. parentheses. 38 Vide infra, and Dodin v. Dodin, *2 Laws of 1896, chap. 272, being 17 Misc. Rep. 35. chap. 48 of the General Laws, amd. 39 Laws of 1873, chap. 830. chap. 418, Laws of 1899. 852 General Rule of Descent. kin of the minor, and such heirs and next of kin shall be the same as if he were the legitimate child of the person adopting; but as respects the pass- ing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the minor is not deemed the child of the foster parent so as to defeat the rights of remaindermen. Effect of the Statutes Relative to Adoption. The adoption of chil- dren was unknown to the common law, and exists in this State only by virtue of the statutes,** set out above. The act of 1873 applied only to adoptions after its passage.** But the act of 1887, enabling adopted children to take by descent, applies to adoptions made before 1887, and under the act of 1873.*^ While the adoption of a minor child entitles it to take immediately by descent from the parents by adoption, and possibly also from the immediate children of the blood of such parents, yet the statute seems to stop just there, and the issue of the adopted child have not inheritable blood of the family into which the adopted child has entered by adoption, so as to entitle such issue to take by descent from other lineal as- cendants or descendants of the adoptive parents; and certainly not from the collaterals of the family by adoption.*^ It will be observed that the adopted child, by provision of the recent law of New York, takes by descent from natural parents as well as from adoptive parents, and this was so in the later Roman law.*^ The reason for the Roman law was that, by emancipation from the adoptive *3 Carroll v. Collins, 6 App. Div. Y. Produce Exchange, 34 App. Div. 106, 109; Matter of Thome, 155 N. Y. 175, 178. 140; Merchant v. White, 37 Misc. *^ Vide Just. Inst, i, 11, 5-8, where Rep. 376; see note to 7 N. Y. An- it is stated that a man may adopt a notated Cases for subject of adop- person as his son, but he cannot tion. Sed cf. Matter of Lane, 39 adopt him as grandson without con- Misc. Rep. 522. sent of the son. Other illustrations M Hill V. Nye, 17 Hun, 457; Matter are to be found in the Roman law. of Thome, 155 N. Y. 140; Branting- It would be contrary to legal cus- ham V. Huff, 174 id. 53. Cf. Sim- torn for the law to constitute one an mons V. Burrell, 8 Misc. Rep. 404, heir by adoption without the act of and see note, 29 Abb. N. C. 49, dis- decedent. Cf. N. Y. Life Ins. Co. v. cussing this subject in an interest- Viele, 22 App. Div. 80; s. c. affd., 161 ing manner. N. Y. 11; Smith v. Allen, 32 App. «Dodin V. Dodin, 17 Misc. Rep. Div. 374; affd., 161 N. Y. 478. 35, 16 App. Div. 42, citing Ely v. *TJust. Inst. 3, i, 14. Holton, IS N. Y. S9S; Kemp v. N. General Rule of Descent. 853 family, the adopted might lose the right to inherit from both fami- lies, had not the right of succession from the natural family been ex- pressly preserved.** The New York statute does not seem to admit of subsequent exclusion from the adoptive family, except by com- mon consent;*" and yet it gives the right to inherit from both the natural family and the adoptive family. Adoptive Father. In imitation of the Roman law,'" the father, by adoption, takes in intestate succession from the adopted child, and the mother also takes under "The Domestic Relations Law."'^ Adopted Child Excluded, when. By provision of The Domestic Re- lations Law, an adopted child is not an heir or next of kin of the adoptive parents, so as to defeat a limitation over in case such parents die without issue or heirs.'^ Adoption by Contract. It seems that one may contract to make another an heir, and that such contract is enforcible, if the person so obligated die intestate;'^ but the evidence must be clear and positive.'* Presumptions in Favor of Heirs. Heirs of the blood of decedents are entitled at common law to every interest in freehold estates, undevised or undisposed of by accident or otherwise,'' and, there- fore, they were never disinherited by implication or without an express devise.'^ But the common-law rule that lapsed devises do not fall into the residuary, but go to the heir, was done away with by the Revised Statutes.'''' *8 G. 3, I, 10-13 ; J"st. Inst. 2, 13, 4 ; Y. Produce Exchange, 34 id. 175, 178 ; G. I, 137. Emancipation was a di- Van Beck v. Thompson, 44 id. 373. vestitive fact, but the Mius-familias '^ Godine v. Kidd, 29 Abb. N. C. could not be emancipated against his 36; Gates v. Gates, 34 App. Div. 608; will. D. I, 7, 31; C. 8, 49, 4; Nov. Brantingham v. Huff, 43 id. 414; Healy 89, II. V. Healy, 55 id. 315; affd., 167 N. Y. *9 Cf. § 66, Domestic Relations 572, 166 id. 624 ; Winne v. Winne, Law; chap. 272, Laws of i8g6; Mat- 166 id. 263. ter of Trimm, 30 Misc. Rep. 493. 54 Merchant v. White, 37 Misc. 'OJust. Inst. 2, 12, pr. ; The Real Rep. 376; affd., 77 App. Div. 539; Prop. Law, § 284. Mahaney v. Carr, 175 N. Y. 454. '1 Supra, p. 851 ; § 285, The Real 55 j Roper & White, Legacies, 516. Prop. Law. 56 Supra, p. 219 ; Oakes v. Massey, 52 The Domestic Relations Law, 94 App. Div. 165. § 64, supra, p. 851. This part of the ^"^ Supra, p. 389, note 73; Cruik- section is very inartificially framed, shank v. Home for the Friendless; but its meaning seems as stated in 113 N. Y. 337; Matter of Allen, 151 the text. Cf. N. Y. Life Ins. Co. v. id. 243. Viele, 22 App. Div. 80; Kemp v. N. 854 Lineal Descendants of Equal Degree. § 282. Lineal descendants of equal degree. — If the intestate leave descendants in the direct line of lineal descent, all of equal degree of consanguinity to him, the inheritance shall descend to them in equal parts however remote from him the common degree of consanguinity may be. Formerly i Revised Statutes, 751, section 2: § 2. If the intestate shall leave several descendants in the direct line of lineal descent, and all of equal degree of consanguinity to such intestate, the inheritance shall descend to such persons in equal parts, however remote from the intestate, the common degree of consanguinity may befi^ Rule I of Descents. This section of The Real Property Law makes no change in the corresponding section of the Revised Statutes, just set out above. The Revised Statutes in this particu- lar had not enlarged™ the scope of the act of 1786, referred to under the preceding section of this act.®" The rule now expressed in this section is called the " First Rule of Descents " *^ from its position in the act of 1786.^^ It is referred to above, in the text, as the rule changing within certain degrees impartible to partible inheritances and abolishing primogeniture.®^ Yet, at common law, not all inheritances were impartible, for in case there were no male descendants, the female descendants of equal degree took as co- parceners,®* and consequently the act of 1786, in order to amplify the intent of the act by familiar illustration, provided that all lineal descendants of equal degree should take in the same manner " as if they were all daughters of the " intestate. But as parceners held more as joint tenants than as tenants in common, the Revised Statutes saw fit to omit this illustration contained in the act of 1786. In essentials, the Revised Statutes only enlarged the scope of " Rule I of Descents," as formulated in 1782®^ in New York, and perpetuated in 1786.®" While this rule of partible inheritances seems novel, it was but a return to Saxon institutions, for before the " Conquest," the descent of all lands in England was according to the custom of gavelkind, which prescribed equal partition 08 Repealed by chap. 547, Laws of ®i Original edition of i Revised 1896, The Real Prop. Law, art. 10, Statutes, p. 751, foot-note i. infra. ^^ Supra, p. 845. 59 I R. S. 753, i 17, now § 293, The 63 Supra, p. 845. Real Prop. Law. ®* 2 Black. Comm. 187. ^ Supra, 0. 845. «^ Supra, p. 845. • 66 Supra, p. 845. Lineal Descendants of Equal Degree. 855 among the male children of an intestate. °'^ The existing limita- tions on the rule of partible inheritances are subsequently mentioned.^* Children. By this first rule of descents, all lineal descendants,*" male and female alike, in the same degree of descent from the common ancestor, take equally and per capita, as tenants in com- mon. Thus, if intestate leave three children, A. and B., males, and C, a female, each child takes one-third of the inheritance.^" Grandchildren. So, if intestate leave all grandchildren, but no children, all the grandchildren (each being in the same degree of descent from the grandparent) take equal shares, or per capita, and as tenants in common. Thus, if intestate leave four grand- children by his son A., deceased, and one grandchild by his son B., deceased,^^ each grandchild takes one-fifth of the inheritance.^* Great-grandchildren. If intestate leave all great-grandchildren and no children or grandchildren, the great-grandchildren do not take the share of their respective immediate ascendant, but all share equally in the inheritance of the common ancestor, being equal in degree of consanguinity from intestate.''^ Adopted Children. Adopted children now take by descent from parents by adoption.''* '''^ Leges Gulielmi, 225; HaWam, Mid. ''^4 Kent, Comm. 395; Pond v. Ages, I, 129. In some cases all chil- Bergh, lO Paige, 140, 148; Remsen, dren shared alike. Intest. Success. 43. Cf. Adams v. ® Infra, under § 291, The Real Smith, 20 Abb. N. C. 60, 62. Prop. Law. t4 yiiig supra, p. 851, under § 281. 69 Legitimate is meant. § 289, The The Real Prop. Law; and § 64, The Real Prop. Law. Domestic Relations Law, which is set TO I R. S. 753, § 17; now § 293, The out in full on pp. 851, 852, supra. Real Prop. Law. The Domestic Relations Law is ex- ■^1 4 Kent, Comm. 375 ; Pond v. press and clear, in that it confers the Bergh, 10 Paige, 140, 148. right of inheritance from adoptive ■^2 (Intestate.) parents on children by adoption. A. (deed. son). B. (deed. son). I I ' I a" I a"' I a""| [V~~ 1234 5 856 Lineal Descendants of Unequal Degree. § 283. Lineal descendants of unequal degree If any of the descendants of such intestate be living, and any be dead, the inheritance shall descend to the hving, and the de- scendants of the dead, so that each living descendant shall inherit such share as would have descended to him had all the descendants in the same degree of consan- guinity who shall have died leaving issue been living; and so that issue of the descendants whO' shall have died shall respectively take the shares which their ancestors would have received. Formerly i Revised Statutes, 751, sections 3 and 4: § 3. If any of the children of such intestate be living, and any be dead, the inheritance shall descend to the children who are living, and to the descendants of such children as shall have died; so that each child who shall be living, shall inherit such share as would have descended to him, if all the children of the intestate who shall have died leaving issue, had been living; and so that the descendants of each child who shall be dead, shall inherit the share, which their parent would have received if living. '5 § 4. The rule of descent prescribed in the last section, shall apply in every case where the descendants of the intestate, entitled to share in the inheritance, shall be of unequal degrees of consanguinity to the intestate; so that those who are in the nearest degree of consanguinity, shall take the shares which would have descended to them, had all the descendants in the same degree of consanguinity, who shall have died leaving issue, been living; and so that the issue of the descendants who shall have died, shall respec- tively take the shares, which their parents, if living, would have received^* History of this Section 283. The archetype of this section of The Real Property Law was d-erived from the second canon of descents in the act of 1782," revised in 1786.'^ Interpretation of this Section; Rule II of Descents. This section con- tains the second rule of descent, that surviving lineals of the same degree take per capita, as between themselves, and that the issue or descendants of such of that degree as are dead take the share of their immediate ancestor per stirpes inter se, or, in other words, take jure representationis. Thus, if intestate leave a son and also ''^ Repealed by chap. S47. Laws of ^'^ Laws of 1782, chap. 2, supra, p. 1896, The Real Prop. Law, art. 10, 845. infra. ^* Laws of 1786, chap. 12, supra, p. T6 Repealed by chap. 547, Laws of 845. i8g6, The Real Prop. Law, art. 10, infra. Lineal Descendants of Unequal Degree. 857 two children of a deceased daughter, the son will inherit an un- divided one-half, and the daughter's two children will each take a moiety of the other undivided one-half, and these three heirs-at-law will then hold as tenants in common, until sale or partition.™ The rule stated in this section is known from its numbering in the acts of 1782 and 1786, as the " Second Canon of Descents." ^ Adopted Children. Adopted children of a deceased descendant will hardly be let into an intestate succession under this section of The Real Property Law.®^ But the adopted children of an intestate will share,^^ subject to the rule stated in section 290 of this act. Children Legitimated per Subsequens Matrimonium. Certain illegiti- mate children, though formerly not regarded as entitled to share in an intestate succession, now are by statute made competent as heirs after the intermarriage of their parents.®^ ^^4 Kent, Comm. 390; Rems. Intes. 82 l^ws of 1896, chap. 272; § 64, Sue. 42; Pond V. Bergh, 10 Paige, The Dom. Rel. Law; supra, p. 851. 140, 148. 83 The Real Prop. Law, § 289; The 80 4 Kent, Comm. 390. Dom. Rel. Law, § 18; Smith v. Lan- 81 Vide supra, under § 281, The sing, 24 Misc. Rep. 566. Vide infra. Real Prop. Law, and § 64, The Dom. under § 289. Rel. Law. 858 When Father Inherits. § 284. When father inherits If the intestate die without lawful descendants, and leave a father, the inheritance shall go to such father, unless the inheritance came to the intestate on the part of his mother, and she be living; if she be dead, the inheritance descending on her part shall go to the father for life, and the reversion to the brothers and sisters of the intestate and their descendants, accord- ing to the law of inheritance by collateral relatives here- inafter provided; if there be no such brothers or sisters or their descendants living, such inheritance shall descend to the father in fee. Formerly i Revised Statutes, 751, section S, as amended by chapter 320, Laws of 1830, section 13: § 5. In case the intestate shall die without lawful descendants, and leav- ing a father, then the inheritance shall go to such father, unless the inher- itance came to the intestate, on the part of his mother, 8-* § 13. In case the intestate shall die without lawful descendants, and leaving a father, then the inheritance shall go to such father, unless the inheritance came to the intestate, on the part of his mother, and such mother be living; but if such mother be dead, the inheritance descending on her part shall go to the father for life and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inher- itance by collateral relatives hereinafter provided; if there be no such brothers or sisters, or their descendants living, such inheritance shall descend to the father in fee. (Laws of 1830, chap. 320, § I3.)85 History of this Section 284. This section is derived, through the Revised Statutes,®" from the act of 1786,®^ not being contained in the act of 1782.®® Rule in of Descents. Combined with the next succeeding section of this act, this section forms the " Third Rule of Descents," *** whereby preference is given to parents over collaterals of intestate. It is to be observed that, under this " Third Rule," the old prefer- ence for males to females^^ still survives to a limited extent in the law. A like succession of parents to children is said by Kent to have been regarded as impolitic by the Roman law, it being con- 84 Amended, § 13, chap. 320, Laws ^'^ Supra, p. 845. of 1830. ^^ Supra, p. 84s. 85 Repealed, chap. 547, Laws of 89 4 Kent, Comm. 393; Torrey v. 1896, by repeal of R. S. Shaw, 3 Edw. Ch. 356, 360. fi^ Supra, p. 858; I R. S. 7Si> § S,as »o Supra, p. 846. amended. Laws of 1830, chap. 320. When Father Inherits. 859 trary to the law of nature.*^ It cannot be denied that among cer- tain classes there are arguments to be adduced against this order of succession, now so well established in this State,''^ for it tends to possible neglect by the father of enriched children, and, in rare cases, even to infanticide. Yet, even in England, this rule was older than the feudal settlement, for in Saxon times the father might inherit from the son."^ The reason why, by the common or feudal law, a father did not succeed to his son's estate, was purely military,^* the maxim, " hareditas nnnquam asccndit," being only the result of a fiction that the father had already enjoyed the estate.*'' Inheritance ex Parte Materna. If the inheritance came to the in- testate on the part of his mother, his father does not succeed, excepting the mother be then dead.®^ The meaning of this expres- sion in the statute, " on the part of his mother,'' was deemed not clear at first.*'' But it was finally held that an estate came to an intestate " on the part of his mother,'' when it was derived by the intestate from her, or from any relatives of her blood,** by devise,''* gift^ or descent." But where an intestate received money from his mother as a gift, and invested it in land, it was held that the land did not come to him " on the part of the mother,'' and the land descended as if it had been originally purchased (de novo) by the intestate himself.* So if intestate acquire the estate for a valuable consideration from his mother or her family, then it is an acquisi- tion by original purchase and not an estate derived " ex parte materna " within the meaning of this section of The Real Property Law.* 91 4 Comm. 397, citing Just. Inst, ris v. Ward, 36 N. Y. 587; Righter v. 3, 3. Ludwig, 39 Misc. Rep. 416. 82 Matter of Hohman, 37 Hun, 250; 99 Wells v. Seeley, 47 Hun, 109; Morris v. Ward, 36 N. Y. 587. Hyatt v. Pugsley, 33 Barb. 373, 377; *3 Hallam, Mid. Ages, I, 129. Righter v. Ludwig, 39 Misc. Rep. ^ Supra, pp. 84s, 846. 416; The Real Prop. Law, § 280. 95 Glanvill, lib. 7, chap, i; 2 Black. 1 Morris v. Ward, 36 N. Y. 587; Comm. 211, 212. The Real Prop. Law, § 280. Cf. ^^ Supra, § 284, The Real Prop. Champlin v. Baldwin, i Paige, 562. Law. 2 Valentine v. Wettherill, 31 Barb. 97Torrey v. Shaw, 3 Edw. Ch. 356, 655; The Real Prop. Law, § 280. 361; Morris v. Ward, 36 N. Y. 587; 3 champlin v. Baldwin, i Paige, Adams v. Anderson, 23 Misc. Rep. 562. Cf. Adams v. Anderson, 23 705. Misc. Rep. 70s, 709. 98 The Real Prop. Law, § 280; Mor- * Morris v. Ward, 36 N. Y. 587, 594- 860 When Father Inherits. If Mother be Dead, Father Takes. If the mother be dead, and in- testate has collateral kindred, the inheritance which came to intes- tate " on the part of intestate's mother," devolves on the father for life; always provided intestate leaves no lineal descendants.' The " reversion," in such case, vests in the collaterals of intestate according to rule IV," and if there be none such, then the father takes the inheritance in fee.'' A reversion vests on the death of an intestate and is not now suspended during the intervening life estate.* Adopted Children. Fathers may inherit from adopted children under recent laws.^ This section of The Real Property Law may consequently cause embarrassment in cases where the inheritance of the adopted came to him on the part of his natural mother and not his adoptive mother. The legislation in regard to adoption must be very much supplemented to constitute a complete code of reciprocal rights, duties and obligations. It is now singularly incomplete. Legitimated Children. The father may also inherit from children made legitimate by a subsequent marriage of parents.^" Ascendants beyond Grandfather and Grandmother. Ascendants beyond grandfather and grandmother are not let into an intestate succes- sion by the present New York law,^* except possibly in conformity with the common law,^^ and after all collaterals specified in this act^^ are exhausted. Grandparents. Prior to March 22, 1904, grandparents were not such ascendants as were specifically entitled by statute to inherit, in default of those specified in section 281 of this act. But this has now been changed by a recent statute." s Laws of 1830, chap. 320, § 13, * § 64, " The Domestic Relations supra. Law;" vide supra, pp. 851, 852, under « Infra, §§ 286, 287, The Real Prop. § 281, The Real Prop. Law. Law. ■"' yide infra, under § 289, The Real T The Real Prop. Law, § 284; Mor- Prop. Law. ris V. Ward, 36 N. Y. 587; Fowler v. "4 Kent, Comm. 407. Cf. chap. IngersoU, 127 id. 472, 476. io6, Laws of 1904, amending § 288, 8 Barber v. Brundage, 50 App. Div. The Real Prop. Law, infra. 129; affd., 169 N. Y. 368; § 49i The 12 § 291, The Real Prop. Law; 2 Real -Prop. Law. Cf. Jackson v. P. Wms. 613. Hendrick, 3 Johns. Cas. 214; Jackson is §§ 287, 288, The Real Prop. Law. V. Hilton, 16 id. 96; Lese v. Miller, 1*4 Kent, Comm. 407; chap. 106, 71 App. Div. 19s, as to contingent Laws of 1904; et vide infra, § 288, remainders. The Real Prop. Law. When Mother Inherits. 861 § 285. When mother inherits. — If the intestate die without descendants and leave no father, or leave a father not entitled to take the inheritance under the last section, and leave a mother, and a brother or sister, or the descend- ant of a brother or sister, the inheritance shall descend to the mother for hfe, and the reversion to such brothers and sisters of the intestate as may be living, and the descendants of such as may be dead, according to the same law of inheritance hereinafter provided. If the in- testate in such case leave no brother or sister or descendant thereof, the inheritance shall descend to the mother in fee. Formerly i Revised Statutes, 752, section 6: § 6. If the intestate sliall die without descendants and leaving no father, or leaving a father not entitled to take the inheritance under the last pre- ceding section, and leaving a mother, and a brother or sister, or the descend- ant of a brother or sister, then the inheritance shall descend to the mother during her life, and the reversion to such brothers and sisters of the intestate as may be living, and the descendants of such as may be dead, according to the same law of inheritance hereinafter provided. If the intestate in such case, shall leave no brother or sister, nor any descendants of any brother or sister, the inheritance shall descend to the mother in fee. Some Account of Section 285, Supra. This section, with that pre- ceding, forms a part of " Rule III of Descents." The admission of the mother into the line of succession from an intestate who leaves no lineal descendants is an innovation of the Revised Statutes.^® It did not, like the rule of paternal succession, originate with the act of 1786.1" When Mother Takes a Fee. The instances where the mother takes a fee under this section include the case where the inheritance came to her intestate son from an ancestor, and such intestate leaves a brother or sister of the half blood, not of the blood of such ances- tor, and excluded under section 290 of this act.-'^ When Mother Takes a Life Estate. Under this section, if an intes- tate leave only brothers and sisters, a father not entitled to take, and a mother, the mother takes a life estate only.^^ But if there are no such collaterals the mother takes in fee.^^ IB Note of Revisers, i R. S. 752, i® Supra, § 285 ; Tilton v. Vail, 17 § 13; infra, Appendix II. Civ. Proc. 194, 199; Miller v. Ma- 16 Chap. 12, Laws of 1786, supra, p. comb, 26 Wend. 229. 845. 19 Canfield v. Fallon, 26 Misc. Rep. IT Wheeler v. Clutterbuck, 52 N. Y. 345 ; § 285, supra. 67; Conkling v. Brown, 8 Abb. Pr. (N. S:) 345; s. c, 57 Barb. 265. 862 When Mother Inherits. When intestate leaves a mother and brothers or sisters, one or more, the reversion vests in the collaterals at the death of intestate, and descent is not suspended during the life of the mother.^" Inheritance from Adopted Child. By recent legislation a mother by adoption may inherit from her adopted child.^^ But the legisla- tion on this subject is so incomplete as to make this section of The Real Property Law difficult to apply in cases of intestate suc- cession by adoptive mothers.^^ If the inheritance came to intestate from his natural parents one set of arguments applies: If the estate was the result of his own frugality, another set of arguments may be made to govern the succession. But where the estate came to intestate from the adoptive family it ought certainly to revert to the members of that family. Yet the legislation in New York offers imperfect solution of these cases. Inheritance from Legitimated Offspring. The mother may also in- herit under this section from those of her offspring who were legitimated by her subsequent marriage with their father.^* Inheritance from Illegitimate Children. The mother may also in- herit from her illegitimate offspring, not legitimated; but this is pursuant to section 289 of this act.^* 20 Barber v. Brundage, 50 App. 22 Supra, p. 860. Div. 123 ; affd., 169 N. Y. 368 ; § 49, ^3 j/ide infra, under § 289, The Real The Real Prop. Law. Prop. Law. 21 § 64, The Domestic Relations 24 yide infra, § 289, The Real Prop. Law, supra, p. 851. Law. When Collateral Relatives Inherit. 863 § 286. When collateral relatives inherit; collateral relatives of equal degrees. — If there be no father or mother capable of inheriting the estate, it shall descend in the cases here- inafter specified to the collateral relatives of the in- testate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from him the common degree of consanguinity may be. Formerly i Revised Statutes, 752, section 7: § 7. If there be no father or mother, capable of inheriting the estate, it shall descend, in the cases hereinafter specified, to the collateral relatives of the intestate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from the intestate, the common degree of con- sanguinity may be.^s Account of the Legislation Embodied in Section 286. By the common law, collateral relations inherited on failure of lineal descendants of an intestate; the eldest male being preferred under the rule of primogeniture.^^ By the New York act of 1782,^ as amended in 1786,^ an inheritance of intestate, failing lineal descendants and father, went to his brothers and sisters in equal parts, and to the children of deceased brothers and sisters; the latter taking the share of their respective parents, jure representationis or per stirpes?^ If there were no surviving brothers and sisters of intestate, still their children in every case took the inheritance per stirpes and not per capita, although such children all stood in equal degree from the intestate.^" This rule the Revised Statutes changed,^^ so as to make it conform to the corresponding rule applicable to lineal descendants of the same degree.^^ The act of 1786 did not provide for collateral succession, beyond brothers' and sisters' children.^* 25 Repealed by chap. 547, Laws of ^^ Pond v. Bergh, 10 Paige, 140, i8g6, The Real Prop. Law, art. 10, 148. infra. ^'^ Jackson ex dem., etc. v. Thur- 26 Supra, p. 846, under § 281, The man, 6 Johns. 322. Real Prop. Law. si i R. S. 752, §§ 7, 8 and 9. 27 Chap. 2, Laws of 1782, supra, p. ^2 § 282, The Real Prop. Law. 845. ^s Hannan v. Osborn, 4 Paige, 336; 28 Chap. 12, Laws of 1786, supra, Pond v. Bergh, 10 id. 140, 148. p. 84s. 864 When Collateral Relatives Inherit. The Revised Statutes extended the succession to the remotest descendants of such brothers and sisters.^* Changes made by the Revised Statutes. The modifications in the act of 1786, introduced by the Revised Statutes, not only permitted collaterals beyond brothers' and sisters' children to take, but provided that they should take per capita and not per stirpes, whenever there was no surviving collateral kinsman of nearer degree to intestate.^^ Thus, by the Revised Statutes, when intes- tate left surviving him only two sons of a deceased brother and one son of a deceased sister, and no other heirs, the three nephews took equal shares of the inheritance, as all stood in equal degree from intestate. This rule prevailed to the remotest degree of collaterals, and this act makes no change in this canon. By the amendment to the act of 1786, mentioned above,^" brothers and sisters of the half blood share, unless the inheritance came to intestate from an ancestor not of their blood.^^ Rule IV of Descents. This rule then concerns the succession of certain collateral kindred. In its entirety it is only partly expressed in this section of this act — the other and more important branch of it being reserved for the next two sections of The Real Prop- erty Law.^* Rule IV of Descents as combined in these sections is, that where collaterals all stand in equal degree, however remote from intestate, they shall share the inheritance equally and not pire representationis?^ But when such collaterals stand in unequal degree of consanguinity to intestate, the succession among them is then jure representationis or per stirpes.'^'' Collateral succession under the Revised Statutes presents a very great similarity to succession under the Roman law as remodeled by Justinian.*^ Collateral Succession. The extent of collateral succession*^ is now always a matter of State regulation, juris positivi; the common law being displaced here, in practice, to a great extent.*^ The col- 34 Id., supra. Kelly, S Lans. 443, 446; § 293, The 35 See note of Revisers to chap. II, Real Prop. Law. R. S.; Appendix No. II, infra. *'>4 Kent, Comm. 400; § 287, The ^ Supra p. 84s. Real Prop. Law; Pond v. Bergh, 10 37 § 290, The Real Prop. Law. Paige, 140, 148; Matter of Davenport, 38 §§ 287, 288, 293, infra. 172 N. Y. 454, 459- 39 Hyatt V. Pugsley, 33 Barb. 373, "Nov. 118,, 127. 377 ; s. c, 23 id. 28s, 301 ; Kelly v. *2 Supra, p. 843. 43 § 291, The Real Prop. Law. When Collateral Relatives Inherit. 865 laterals who are entitled to take by intestate succession, under the law of New York, are (i) brothers and sisters and their descend- ants,** (2) uncles and aunts and their descendants, to the remotest degree.*^ In all such cases, " Rule IV of Descents "*^ applies to the succession to the inheritance and they take as tenants in common.*^ When Collaterals are "Descendants." While collaterals are not " de- scendants " within the meaning of our Statute of Wills,** they certainly are within the meaning of many phrases of this Article on Descents.*® ^* § 287, The Real Prop. Law. « § 288, The Real Prop. Law. *^ Supra, p. 864. *'^ § 293, The Real Prop. Law. 48 Van Beuren v. Dash, 30 N. Y. ,393; Howard v. Barnes, 65 How. Pr. 122. *9Cf. Conkling v. Brown, 8 Abb. 55 Pr. (N. S.) 350, note; §§ 287, 2B8, 290, The Real Prop. Law; McCarthy v. Marsh, s N. Y. 263; Wheeler v. Clut- terbuck, 52 id. 67. By chap. 106, Laws of 1904, grandparents are treated as " descendants,'' for the estate " de- scends " to them ; see § 288, subd. 5, The Real Prop. Law. 866 Brothers and Sisters and their Descendants. § 287. Brothers and sisters and their descendants — If all the brothers and sisters of the intestate be living, the inherit- ance shall descend to them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants, in whatever degree, of those dead; so that each living brother or sister shall inherit such share as w^ould have descended to him or her if all the brothers and sisters of the intestate who shall have died, leaving issue, had been living, and so that such descendants in whatever degree shall collectively inherit the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such descend- ants are of unequal degrees. Formerly I Revised Statutes, 752, sections 8, 9: § 8. If all the brothers and sisters of the intestate be living, the inherit- ance shall descend to such brothers and sisters; if any of them be living, and any be dead, then to the brothers and sisters, and every of them who are living, and to the descendants of such brothers and sisters as shall have died; so that each brother or sister who shall be living, shall inherit such share as would have descended to him or her, if all the brothers and sisters of the intestate, who shall have died leaving issue, had been living; and so that such descendants shall inherit the share, which their parent would have received, if living. § 9. The same law of inheritance, prescribed in the last section, shall pre- vail, as to the other direct lineal descendants of every brother and sister of the intestate, to the remotest degree, whenever such descendants are of unequal degrees.^" Rule IV of Descents. Section 287 of this act states somewhat more explicitly and in detail the rule specified under the preceding section of the statute.^^ The word " collectively " in this section was inserted in the commissioners' draft by the Legislature,®^ in order to make it more clear, when the division of an inheritance was intended to be per stirpes and when per capita. It is now most clear that if intestate leaves brothers and sisters surviving, they inherit equal shares, and that to the remotest degree the descend- ants of deceased brothers and sisters take by representation col- BO Repealed, chap. 547, Laws of "2 Note of Commissioners of Statu- 1896. tory Revision, Appendix I, infra. *1 S 286, supra. Brothers and Sisters and their Descendants. 867 lectively the share their stirps would have taken if living.^^ But if there be no brothers and sisters surviving, but only their chil- dren, then such children take per capita, all standing in equal degree of collateral succession from the intestate.^* If there be some nephews and nieces surviving and some dead leaving children, then such children (being of the degree of great-nephews and great-nieces of intestate) will succeed only to the share of their deceased parent, as the succession in that case is to heirs in unequal degree of propinquity, and consequently per stirpes under Rule IV, regulating collateral descent.^^ Half' Blood. The rule is also explicit that where the intestate is the first purchaser of the inheritance for value (i. e., has acquired it for value, and not by gift or devise by, from or through some relative),^® then his collaterals of the half blood are entitled to share with those of the whole blood of intestate;" provided, of course, he leaves no descendants or parents. Alien Ancestor. The descent between brothers and sisters is immediate, and even before 1830, it made no difference in their right of succession inter se that their common father was an alien.'* But if some brothers and sisters are citizens and some aliens, the citizens take to the exclusion of the aliens.^® B3 Hannan v. Osborn, 4 Paige, 336, ^^ Infra, § 290, The Real Prop. Law. 340, 341; Matter of Healy, 27 Misc. ^r gj-own v. Burlingham, 5 Sandf. Rep. 353; Matter of Davenport, 67 418; Valentine v. Wettherill, 31 Barb. App. Div. 191, 172 N. Y. 454; § 291, 655, 659; Schult v. Moll, 132 N. Y. The Real Prop. Law. 122, 125. 6* Hyatt V. Pugsley, 33 Barb. 373, ^^ Supra, p. 115, under § 5; e< infra, 377: Pond V. Bergh, 10 Paige, 140, § 294, The Real Prop. Law. 148 ; Kelly v. Kelly, s Lans. 443, 446. 59 Leary v. Leary, 50 How. Pr. 55 Pond V. Bergh, 10 Paige, 140, 122; et supra, pp. 115, 119. 148; 4 Kent, Comm. 400. 865 When Uncles, Auxts. axd their Descexdaxts Ixherit. § 288. Brothers and sisters of father and mother and then- descendants and grand-parents. — If there be no heir entitled to take, under either of the preceding sections, the inherit- ance, if it shall have come to the intestate on the part of the father, shaU descend: 1. To the brothers and sisters of the father of the intes- tate in equal shares, if all be living. 2. If any be living, and any shall have died, lea^■ing issue, to such brothers and sisters as shall be li\-ing and to the descendants of such as shall have died. 3. If all such brothers and sisters shall have died, to their descendants. 4. If there be no such brothers or sisters of such father, nor any descendants of such brothers or sisters, to the brothers and sisters of the mother of the intestate, and to the descendants of such as shall have died, or if all have •died, to their descendants. But, if the inheritance shall have come to the intestate on the part of his mother, it shall descend to her brothers and sisters and their descend- ants; and if there be none, to the brothers and sisters of the father and their descendants, in the manner aforesaitl. If the inheritance has not come to the intestate on the part of either father or mother, it shall descend to the brothers and sisters both of the father and mother of the intestate, and their descendants in the same manner. In all cases mentioned in this section the inheritance shall descend to the brothers and sisters of the intestate's father or mother, as the case may be, or to their descendants in like manner as if they had been the brothers and sisters of the intestate. 5. If there be no such brothers or sisters of such father or mother, nor any descendants of such brothers or sisters, the inheritance, if it shall have come to the intestate on the part of his father, shall descend to his father's parents, then living, in equal parts, and if they be dead, then to his mother's parents, then living, in equal parts; but if the in- heritance shall have come to the intestate on the part of his mother, it shall descend to his mother's parents, then living, in equal parts, and if they be dead, to his father's parents, then Uving, in equal parts. If the inheritance has not come to the intestate on the part of either father or When Grandparents Inherit. 869 mother, it shall descend to his living grand-parents in equal parts. Note. — The fifth section was enacted, and the other sections were re-enacted,^" by chapter io6. Laws of 1904, which became a law, March 22, 1904, to take effect immediately. Sections i, 2, 3 and 4 were formerly i Revised Statutes, 752, section 10, and I Revised Statutes, 753, sections 11, 12 and 13: § 10. If there be no heir entitled to take under either of the preceding sections, the inheritance, if the same shall have come to the intestate on the part of his father, shall descend, 1. To the brothers and sisters of the father of the intestate in equal shares, if all be living: 2. If any be living, and any shall have died leaving issue, then to such brothers and sisters as shall be living, and to the descendants of such of the said brothers and sisters as shall have died: 3. If all such brothers and sisters shall have died, then to their descendants: 4. In all cases, the inheritance shall descend in the same manner, as if all such brothers and sisters, had been the brothers and sisters of the intes- tate.fii § II. If there be no brothers and sisters, or any of them, of the father of the intestate, and no descendants of such brothers and sisters, then the inheritance shall descend to the brothers and sisters of the mother of the intestate, and to the descendants of such of the said brothers and sisters as shall have died, or if all shall have died, then to their descendants, in the same manner, as if all such brothers and sisters had been the brothers and sisters of the father.®* § 12. In all cases not provided for by the preceding sections, where the inheritance shall have come to the intestate on the part of his mother, the same, instead of descending to the brothers and sisters of the intestate's father, and their descendants, as prescribed in the preceding tenth section, shall descend to the brothers and sisters of the intestate's mother, and to their descendants, as directed in the last preceding section; and if there be no such brothers and sisters, or descendants of them, then such inheritance shall descend to the brothers and sisters and their descendants, of the intestate's father, as before prescribed.®* § 13. In cases where the inheritance has not come to the intestate, on the part of either the father or mother, the inheritance shall descend to the brothers and sisters both of the father and mother of the intestate, in equal «o See § 288, Appendix I, infra. ^ Repealed, chap. S47i Laws of 81 Repealed, chap. 547, Laws of 1896. 1896. 870 When Uncles, Aunts and their Descendants Inherit. shares, and to their descendants, in the same manner as if all such brothers and sisters, had been the brothers and sisters of the jntestate.*^ Comment on this Section 288. Neither the act of 1782®* nor that of 1786** made any provision for collateral succession beyond the children of brothers and sisters of an intestate."^^ Farther than that degree, collateral succession was then regulated by the com- mon law, the male stock being preferred.®* The Revised Statutes, by the addition of the section above set out, in our text, intro- duced the rule of partible inheritances and a succession by intes- tate's parents' brothers and sisters and their descendants to the remotest degree. " Rule IV of Descents," above given,^^ was also made applicable to such successions. Thus the principle of the acts of 1782 and 1786 was extended to fathers' and mothers' brothers and sisters and their descendants, or so as to include uncles and aunts and their descendants,^ and the English or com- mon-law rule, which preferred the male stock and the eldest male of that stock, was abrogated one step farther. The act of 1894 now permits grandparents to inherit, in default of other heirs specified in this section, thus also amending section 281 of this act. Relatives of the Half Blood. In a succession by uncles and aunts and their descendants, the rule that those of the half blood are left into the inheritance prevails, subject to the proviso in section 290 of this act.** Uncles and Aunts and their Descendants. Under this section if the estate of an intestate comes to him on the part of his father,^** and there be no lineal descendants, no parents, no brothers and sisters or their descendants, then the estate goes to the father's brothers «* Repealed, chap. 547, Laws of i8g6. Kingston, 3 Misc. Rep. 309 ; Matter 83 Supra, p. 84s. of Davenport, 172 N. Y. 454, 459; ^ Supra, p. 845. Matter of Thompson, 87 App. Div. 65 Hannan v. Osborn, 4 Paige, 336; 6og. involves same point, 41 Misc. Pond v. Berg, 10 id. 140, 148; i R. Rep. 223; this case is now in the L. 52. Court of Appeals, endeavoring to 88 Chap. 2, Laws of 1782; chap. 12, overthrow, Matter of Davenport, 172 Laws of 1786. Note of Revisers to N. Y. 454. chap. 2, part 2, R. S.; Appendix No. 69 § 290, The Real Prop. Law; Bee- II, infra. bee v. Griffing, 14 N. Y. 235. ^1 Supra, p. 864. ""^ Supra, p. 859, as to construction «*4 Kent, Comm. 408, 411; Hunt v. of, " on the part of the mother." When Grandparents Inherit 871 and sisters,'^ or to their descendants in inftnitum as provided in Rule IV of DescentsJ^ If, on the other hand, the estate has come to intestate on the part of the mother,''^ the estate, in the absence of nearer consanguinei, or blood relations, will go to her brothers and sisters and their descendants, and be divided according to Rule IV of Descents^* But if the estate comes to intestate on the part of neither father nor mother, then the brothers and sisters of both parents, agnates''® and cognates,''® or their descendants, share the inheritance in accordance with the princi- ples stated in Rule IV of Descents." Distribution of Personalty. In 1898, an amendment to the Code of Civil Procedure''* makes the Statute of Distributions of personal property follow the real property rule, relating to the inheritance by remote collaterals.™ Alien Uncles and Aunts. Aliens are, however, excluded in intes- tate successions by collaterals*" unless special acts permit such succession.®* Grandparents. The admission of grandparents into the statutory table of descents is entirely new, and due to the recent act of the Legislature adding subdivision 5 to section 288 of The Real Prop- erty Law as first enacted.*^ The original scheme of the statute excluded grandparents, or ascendants beyond father and mother.*' If great-grandparents are now fiver entitled to inherit, it must be in default of all heirs and other ascendants, and in the rare in- stances tolerated at common law.** Ti Wells V. Seeley, 47 Hun, 109, 309, 312; Adams v. Anderson, 23 id. 116; 4 Kent, Comm. 408; Matter of 705. Davenport, 172 N. Y. 454, 459. Cf. TS § 2732, Code Civ. Proc. Matter of Thompson, 41 Misc. Rep. t9 Matter of Davenport, 36 Misc. 223, 87 App. Div. 609; now in Court Rep. 476; modified, 67 App. Div. 191, of Appeals. 172 N. Y. 454. ^2 Supra, p. 864. 80 Leary v. Leary, 50 How. Pr. 122; ''^ Supra, p. 859, as to construction et supra, p. 867. of "on the part of the mother." ^^ Supra, pp. 104, 113. "<* Supra, p. 864. 82 Chap. 106, Laws of 1904. T^ Agnates, relations by the father. 884 Kent, Comm. 407. T8 Cognates, relations by the mother. 84 § 291, The Real Prop. Law ; 2 " Brown v. Burlingham, s Sandf. P. Wms. 613. 418; Hunt V. Kingston, 3 Mis«. Rep. 872 Illegitimate Children. § 289. Illegitimate children. — If an intestate who shall have been illegitimate die without lawful issue, or illegitiirtiate issue entitled to take, under- this section, the inheritance shall descend to his mother; if she be dead, to his rela- tives on her part, as if he had been legitimate. If a woman die without lawful issue, leaving an illegitimate child, the inheritance shall descend to him as if he were legitimate. In any other case illegitimate children or relatives shall not inherit. Formerly i Revised Statutes, 753, section 14; i Revised Statutes, 754, sec- tion 19, and chapter 547, Laws of 1855, section i: § 14. In case of the death, without descendants, of an intestate who shall have been illegitimate, the inheritance shall descend to his mother; if she be dead, it shall descend to the relatives of the intestate on the part of the mother, as if the intestate had been legitimate.^ § 19. Children and relatives who are illegitimate, shall not be entitled to inherit, under any of the provisions of this Chapter.86 § I. Illegitimate children, in default of lawful issue, may inherit real and personal property from their mother as if legitimate; but nothing in this act shall aflfect any right or title in or to any real or personal property already vested in the lawful heirs of any person heretofore deceased.*^ Comment on Section 289. By the common law a bastard or ille- gitimate child was one conceived or born out of lawful matri- mony.^* By the common law, a subsequent marriage of the par- ents of an illegitimate child did not legitimate such issue.** It is notorious that the Barons at Merton, in 1235, expressly refused to receive the Civil Law on this point in the celebrated words, " Noltimus leges Anglice mutare." ^ Marriages within the forbid- den degree are, in New York, absolutely void, and the children of such marriages illegitimate.*^ But where a marriage is only ** Repealed, chap. 547, Laws of 1896. 88 Repealed, chap. 547, Laws of 1896. 87 Repealed, chap. 547, Laws of 1896. 881 Black. Comm. 454; 2 Kent, Comm. 211, 212. 89 1 Black. Comm. 454; 2 Kent, Comm. 208; Miller v. Miller, 18 Hun, 507; s. c. revd., 91 N. Y. 315; For- tescue " De Laudibus," etc., chap. 39 ; Doctor & Student, Dialogue i, chap. 7; I Wooddeson, Law Lect. 236. Cf. Bollerman v. Blake, 24 Hun, 187, 94 N. Y. 624. soSelden, chap. 9, § 2; Stubbs, Hist. II, 52; Scrutton 72. 91 2 R. S. 139, § 5; chap. 601, Laws of 1893, now § 2, " The Domestic Relations Law." Illegitimate Children. 873 avoided by decree of the court, the prior issue are not illegitimate."^ Before the Revised Statutes, when the common law prevailed, a bastard could not inherit. He was " Mius nullius," or " iilius populi " or even "filius terrd." ^ Legitimation per Subsequens Matrimonium. In many of the modern Latin States the principle of the Roman law,®* " that a subsequent marriage of parents legitimates their prior offspring," prevails. It is the law of Scotland, and it is, as such, recog- nized on Scotch appeals to the House of Lords, where the rule, " legitimatio per subsequens matrimonium," is frequently applied to intestate succession by Scotchmen.®^ This principle is also recog- nized by the courts of New York in a proper case, where the law of the domicile of origin is applied.^* So rational is the prin- ciple of the Roman law, touching legitimation of children by subsequent marriage of their parents, that it was in 1895 con- verted into a law of this State by statute,®^ and it is now perpetu- ated by " The Domestic Relations Law." *^ These acts are not retroactive and saved vested rights either of administration or in estates of persons, under prior limitations to such parents, with remainders over for defaults of issue, etc.** A legitimation per subsequens matrimonium under chapter 531, Laws of 1895, does not operate to defeat rights vested prior to that act.^ Where a will was made before the statute but tes- tator died after it, it was held that a devise of remainder " to law- ful issue " did not entitle an illegitimate son whose parents had intermarried before the statute to take the remainder.^ 92 Code Civ. Proc, §§ 1759, 1760; 2 9'^ Chap. 531, Laws of 1895. R. S. 139, § 4, now § 4, The Domestic '^ Chap. 272, Laws of 1896, beingr Relations Law. chap. 48 of " The General Laws," 93 I Black. Comm. 454; 2 id. 247; § 18, amd., chap. 725, Laws of 1899. Co. Lilt. 8a ; 2 Kent, Comm. 212, and ^9 Ferris v. The Pub. Admr., 3 cases cited infra, this section. Bradf. 249; Wissel v. Ott, 34 App. 9* C. S, 27, 10; Nov. 89, 8; 78, 3; 12, Div. 159; Matter of Barringer, 29 4 ; Miller v. Miller, 18 Hun, 507, 520 ; Misc. Rep. 457. Cf. Smith v. Lan- s. c, gi N. Y. 315; I Wooddeson, sing, 24 id. 566. Law Lect. 233 seq. 1 Wissel v. Ott, 34 App, Div. 159. 95 See note 11, 2 Wend. Black. 248; Cf. Matter of Barringer, 29 Misc. Lauderdale Peerages, L. R., 10 App. Rep. 457; Matter of Schmidt, 42 id. Cas. 692; s. c, 17 Abb. N. C. 439. 463. 96 Miller v. Miller, 91 N. Y. 315; 2 u. S. Trust Co. v. Maxwell, 26 s c, 18 Hun, 507, 520, revd. Cf. Misc. Rep. 76. Bollermann v. Blake, 24 id. 187, 23 Alb. L. J. 16s. 874 Illegitimate Children. The subsequent marriage to legitimate issue must be that of the putative parents.^ Children thus made legitimate by statute do not take under this section of this act,* but they take as legiti- mate lineal descendants under the Table of Descents, embodied in section 281 of this act.^ How far a statutory legitimation by a subsequent marriage of the parents entitles such issue to take real estate, situated in another State, by comity, is the subject of an interesting monograph, to which it may be useful to refer.® In Pennsylvania and other States, it has been held that such legiti- mation, under the laws of a foreign State, produces no such result in Pennsylvania or such other States.'^ Foreign Legitimation. If a child is legitimated, under the laws of a foreign country, where the marriage took place and the pu- tative parents are domiciled, he may inherit in this State as heir of the father.* Status of Legitimacy. Children are always presumed to be legiti- mate until the contrary is shown.^ A recognition by the family, general reputation, matrimonial cohabitation of parents, are suffi- cient to establish legitimacy in this State, especially after a great lapse of time.'"* In this State, " concensus, non concubitus, facit matri- monium," ^^ and the maxim, " omnia pmsumuntur pro matrimonio," is very liberally applied to legitimate children.^* Mother the Heir, when. At common law an intestate bastard was incapable of transmitting real and personal property, except to his wife and lineal descendants.^^ Biit when the stattis of illegiti- 3 Matter of Pfarr, 38 Misc. Rep. ^ Cross v. Cross, 3 Paige, 139; 223. Montgomery v. Montgomery, 3 Barb. *§ 289, The Real Prop. Law. Ch. 132; Davis v. Davis, 27 Misc. ^Townsend v. Van Buskirk, 33 Rep. 455; TuUy v. Tully, 28' id. 54; Misc. Rep. 287. Matter of Rawson, 29 id. 534, 540. «23 Alb. L. J. 165; and see Matter 10 Gall v. Gall, 114 N. Y. 109, 118; of Hall, 61 App. Div. 266, 277. Hynes v. McDermott, 91 id. 451, 459. ''Smith V. Dorr's Admr., 34 Pa. " Fenton v. Reed, 4 Johns. 52; St. 126; Barnum v. Barnum, 42 Md. Gall v. Gall, 114 N. Y. 109. 250; Lingin v. Lingin, 45 Ala. 410; ^^Caujolle v. Ferrie, 23 N. Y. 90, Stoltz V. Doehring, 112 111. 603. Cf. 9S; Hynes v. McDermott, 91 id. 451; Scott V. Key, 11 La. 232; Miller v. Montgomery v. Montgomery, 3 Barb. Miller, 91 N. Y. 315; Matter of Lutz, Ch. 132; Matter of Schmidt, 42 Misc. 43 Misc. Rep. 230. Rep. 463 ; Tracy v. Prey, 95 App. Div. 8 Bates V. Virolet, 33 App. Div. 436 ; 579- Matter of Hall, 61 id. 266, 276. *^ i Wooddeson, Law Lect. 236, 237. Illegitimate Children. 875 macy is once fixed upon a male child, his mother, if living, is, un- der this section, his universal heir, unless he leaves lawful issue surviving.^* Neither the illegitimate children of an illegitimate male nor his collaterals, however, inherit from him, under this sec- tion, but his mother, or her stock, excludes them in the succes- sion.^^ But the mother of an illegitimate female does not inherit to the exclusion of the illegitimate offspring of such female. This section of The Real Property Law covers that case. Sister Heir, when. If an illegitimate die, leaving an only sister, born of the common mother, but no brother, the sister inherits, and has the right to administer.^* 1* § 289, supra; Matter of Mericlo, St. John v. Northrup, 23 Barb. 25, 63 How. Pr. 62; St. John v. Nor- 32; Kiah v. Grenier, 56 N. Y. 220, thrup, 23 Barb. 25, 32. 224. 15 Matter of Mericlo, 63 How. Pr. 1* Matter of Lutz, 43 Misc. Rep. 62; Miller v. Miller, 18 Hun, 507, 516; 230. 876 Relatives of the Half-Blood. § 290. Relatives of the half-blood. — Relatives of the half- blood and their descendants, shall inherit equally with those of the whole blood and their descendants, in the same degree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor; in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance. Formerly i Revised Statutes, 753, section 15 : § 15. Relatives of the half-blood shall inherit equally with those of the whole blood in the same degree; and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood; unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors; in which case, all those who are not of the blood of such ancestors, shall be excluded from such inheritance.!^ Rule V of Descents. The rule that collaterals of the half blood are now admitted into the existing "Table of Descents,"^® although subject to the provision that such collaterals of the half blood are excluded when the inheritance came to intestate by descent, de- vise or gift from an immediate ancestor not of their blood, forms Rule V of the existing canons of descent, it being an innovation on the common law of descents.^® Rule V of Descents is fully and clearly expressed in this section of The Real Property Law, and needs no paraphrase. Account of Section zgo, the Real Property Law. The English common law did not admit those of the half blood into collateral succes- sions.^ But even at common law there were some reasonable exceptions to this rule; e. g., where the intestate had not been actually seised of a hereditament in order to make himself the stock or terminus, then the brother of the half blood succeeded before the sister of the whole blood.^^ This was because it was necessary to go back to the seisin of the common father of the intestate and the half blood, and the brother of the half blood was the common father's heir. Blackstone lucidly explains the origin of the feudal, or common-law rule, which exclvided the half blood from collateral successions; it being founded on a presumption 17 Repealed, chap. 547, Laws of 20 Supra, p. 847 ; 2 Black. Comm. 1896. 228-231. 18 § 281, The Real Prop. Law. 21 Watkins, Descents, 42. 18 Supra, pp. 846, 847, 848. Relatives of the Half-Blood. 877 that the half blood could not be of the blood of the first feuda- tory.^^ It is obvious that this rule might apply beneficently only to inheritances of very old family or ancestral estates, and that it had no reasonable application in successions to those estates ac- quired solely by the industry of the persons last seised. The Legislature of New York, in 1786, wisely changed the common law in this respect, so as to admit brothers and sisters of the half blood into collateral successions, in every case where the inheritance came from a common ancestor of such whole and half blood ; but excluding them in every other case.^^ The Revised Statutes can-ied the same principle much farther.^ But whether it was intended to apply to successions beyond those of uncles and aunts and their descendants is doubtful.® This act goes not beyond the Revised Statutes in this respect.^® Relatives of the Half Blood. Thus, under the existing Statutes of Descents, half blood brothers and sisters of intestate and their descendants in infinitum^'' and the half blood brothers and sisters of intestate's father and mother and their descendants in inUnitum,^^ are admitted (according to the foregoing rules^^), into intestate collateral successions (in default of those of nearer degree), unless the inheritance came to intestate from an immediate ancestor who was not of the blood of such half blood collaterals of intestate.^" Beyond collaterals of the degrees indicated, the common-law rules regulating descents prevail.^^ Ancestor. The term " ancestor," as employed in this section, embraces collateral as well as lineal predecessors in blood and title.^^ But it means the immediate ancestor, from whom intestate 222 Black Comm. 228; Valentine v. 29 §§ 281, 286, 287, 288, The Real Wettherill, 31 Barb. 6ss, 658. Prop. Law; supra, pp. 844, 863, 866, 23 Laws of 1786, chap. 12; i R. L. 868. of 181,3, p. S3. 30 Wheeler v. Clutterbuck, 52 N. Y. 2*1 R. S. 753, § IS. 67; Valentine v. Wettherill, 31 Barb. 25 Note of Revisers to i R. S. 753, 655, 658; Brown v. Burlingham, 5 l§ IS, 16. Sandf. 418. 26 §§ 290, 291, The Real Prop. Law. 3i § 291, The Real Prop. Law. 27 § 287, The Real Prop. Law. 32 wheeler v. Clutterbuck, 52 N. Y. 28 § 288, The Real Prop. Law; Bee- 67; McCarthy v. Marsh, s id. 263; bee v. Griffing, 14 N. Y. 235; Hunt v. Conkling v. Brown, 8 Abb. Pr. (N. Kingston, 3 Misc. Rep. 309; 4 Kent, S.) 34s, 3S0, note; Valentine v. Wet- Comm. 408, 411. therill, 31 Barb. 6ss, 6S9; Matter of Reeve, 38 Misc. Rep. 409. 878 Relatives of the Half-Blood. received the estate, and not some remote ancestor who may have first acquired the estate by purchase.*^ When the estate was derived by intestate by purchase and for value, and not by descent, devise or gift from an ancestor, the exclusion specified in this sec- tion has no application, and intestate's collaterals of the half blood share with those of the whole blood.^* An estate derived by an intestate " C." from his brother "A." is an estate derived by " C." from an " ancestor," ^ within the meaning of this section, and although "A." in his turn had inherited the estate from their father, " B.," the half brothers and sisters of "A." and " C, not of the blood of " B.," are entitled to share in the inheritance ; for " C." derived the estate from his brother "A.," and not from his father " B.," and the half brothers and sisters of " C." were half brothers and sisters of "A.," and, therefore, of the blood of '•Ji^ " 36 Uncles and Aunts of Intestate. The principle concerning the rights of those of the half blood to take in collateral successions applies to uncles and aunts of intestate, and to their descendants to the remotest degree.^'' 33 Wheeler v. Clutterbuck, 52 N. Y. 655, 660; Brown v. Burlinghain, 5 67, 71; Valentine v. Wettherill, 31 Sandf. 418. Barb. 655, 658; Emanuel v. Ellis, 48 35 McCarthy v. Marsh, 5 N. Y. 263: N. Y. Super. Ct. (16 J. & S.) 430; McGregor v. Comstock, 3 id. 408. Hyatt V. Pugsley, 33 Barb. 373; 36 Wheeler v. Clutterbuck, 52 N. Y. Ccnkling v. Brown, 8 Abb. Pr. (N 67; Valentine v. Wettherill, 51 Barb. S.) 34S. 6SS- 3* Valentine v. Wettherill, 31 Barb. 37 Beebee v. Griffing, 14 N. Y. 235. Inheritance from Husband and Wife. 879 § 290a. Inheritance from husband or wife — When the inher- itance shall have come to the intestate from a deceased husband or wife, as the case may be, and there be no person entitled to inherit under any of the preceding sections, then such real property of such intestate shall descend to the heirs of such deceased husband or wife, as the case may be, and the persons entitled, under the provisions of this section, to inherit such real property, shall be deemed to be the heirs of such intestate. Comment. This section is new, being enacted by chapter 481 of the Laws of 1901, or since the original passage of the Real Property Law.^* The meaning of this section at first does not seem quite plain. The word " inheritance," simplidter may mean either an estate of inheritance,*® or real property actually inherited.** In the former case only will it include estates devised to the intestate. The word " inheritance " in this section cannot possibly have the mean- ing prescribed by the initial and defining section of this article." It must be construed as meaning " estate of inheritance." The words " from a deceased husband or wife " must, in order to meet the equity of the statute, be intended to mean " on the part " of a husband or wife.** With such a construction of this section we shall perceive that if an estate be devised to a married person by the husband or wife of such person, or by relatives of the other spouse and the devisee die without right heirs, such estate, instead of escheating, will now go back to the heirs at law of the other spouse ; thus, in practice, cutting down a fee to a life estate, or else making the estate thus devised a " qualified fee," or one by which the heirs of one spouse are made the heirs at law of the other.*' It will be remembered that neither husband nor wife inherits from the other. Even the title of dower is not strictly by inherit- ance, but by a succession called " infeudation," and the dowager 38 Chap. S47, Laws of 1896. *i § 280, The Real Prop. Law. 39 3 Prest. Abst. of Tit. 236 ; i « § 280, The Real Prop. Law and id. 144; I Williams, Real Prop. 419. text under § 284, supra. 40 2 Black. Comm. 201; Smith, Real *^ Supra, p. 157; i Prest. Estates, & Pers. Prop. 323; § 280, The Real 472. Prop. Law. 880 Inheritance from Husband and Wife. holds of the heir as of the husband's seisin, an estate of free- hold not of inheritance.** In the same way tenant by curtesy consummate cannot be said strictly to have derived his estate of freehold for his own life, from his wife by inheritance.*^ This section, therefore, can have no application to estates of dowagers or of tenants by curtesy which are not estates of inheritance, and not inherited. This section must therefore refer to estates derived by a husband -or a wife from each other or their children, or from the relatives of the blood of the other.*^ In such case, if the person so last seised die intestate leaving no heirs at law the inheritance will now under this section pass to the heirs of the other spouse.*'^ The principle of this section might well be extended by statute to all cases of intestacy where husband or wife has derived the estate from the other or from the relatives of the other. It seems always unjust that such estates shpuld pass by law out of a family ■originating them, into a strange family. ** Litt. § 393 ; Watkins, Descents, *•'' See under § 280, supra. ■83; Co. Litt. 240b, § 170, The Real *8 § 280, The Real Prop. Law. Prop. Law. •*'' § 290a, supra. Descent in Cases not Hereinbefore Provided for. 881 § 291. Cases not hereinbefore provided for In all cases not provided for by the preceding sections of this article, the inheritance shall descend according to the course of the common law. Formerly i Revised Statutes, 753, section 16: § 16. In all cases not provided for by the preceding rules, the inheritance shall descend according to the course of the common law.*^ Comments on this Section. The common law, in so far as it is adopted by the State Constitution, still controls descent in this State in every case not specially provided for by the foregoing five rules of descent,*^ or by the section regarding illegitimate succession, which may be regarded as an exception rather than a rule of descent.®" The common law which is thus made the " ultima ratio " of cases not specifically provided for, is not the Statute of Distributions of English Law, founded, as Blackstone thought, on the ii8th and 127th Novels of Justinian," but the pure Anglo-feudal law of succession, or that which is now termed the common law of land. Chancellor Kent wondered that the revisers did not adopt the principle of the Statute of Distributions instead of this archaic law.^^ But the revisers simply revised the earlier State Statutes of Descent, which had uniformly contained a like provision, consonant with the genius of all statutory reforms of the common law.®^ The five new rules of descent above mentioned,®* prescribed by this statute, provide for (i) lineal descent in infinitum; (2) for the succession of ascendants, only as far as the mother and father of intestate; (3) for collateral succession of brothers and sisters and their descendants in infinitum; (4) for collateral succession of uncles and aunts, both agnates and cognates, and their descendants in infinitum; ^^ (5) grandparents. Beyond that point this statute makes no specific provision whatever, and by provision of this sec- ■•8 Repealed, chap. 547, Laws of ^^4 Comm. 411. 1896. B3 Laws of 1782, chap. 2; Laws of 49 Supra, pp. 849, 8S4, 856, 858, 861, 1786, chap. 12; i K. & R. 44; i R. L. 864, 866, 876. of 1813, pp. S2, 305. 50 The Real Prop. Law, § 289. 54 Supra, note 49, p. 881. 51 2 Black. Comm. 517. Cf. Scrut- 55 The Real Prop. Law, § 281. ton, " Rom. Law & Law of Eng." p. 147, where this is denied. 56 882 When Common-Law Rules Prevail. tion the common law then prevails. Thus, the rules of the oommon law, given above,^^ apply to intestate succession after the de- scendants of uncles and aunts are exhausted, failing grandparents. But independently of this section the common law would have prevailed in any event, had it not been expressly abrogated; so that this section of this act is simply declaratory. Common-law Rules Still in Force. After the lineals, ascendants, and collaterals, expressly indicated in this article as entitled to succeed in intestate successions," are exhausted, then the canons of the common law above given apply.^* Grandparents have recently been admitted into the Table of Descents.^* But in default of grand- parents it would seem that then the granduncles of the father's side become the stock of descent under the common-law rule that males are preferred, and so the male stock of the eldest grand- uncle will take to the exclusion of others in equal degree from the intestate.®" "* Supra, pp. 846, 847. 60 Hunt v. Kingston, 3 Misc. Rep. w§§ 281, 284, 28s, 286, 287, 288, The 309. Cf. Brown v. Burlingham, 5 Real Prop. Law. Sandf. 418; and § 293, The Real Prop. ^^ Supra, pp. 846, 847. Law. "* Chap. 106, Laws of 1904, amdg. § 288, The Real Prop. Law. Posthumous Children and Relatives. 883 § 292. Posthumous children and relatives — A descendant or a relative of the intestate begotten before his death, but born thereafter, shall inherit in the same manner as if he had been born in the lifetime of the intestate and had survived him. Formerly i Revised Statutes, 754, section 18: § 18. Descendants and relatives of the intestate, begotten before his death, but born thereafter, shall in all cases inherit in the same manner as if they had been born in the lifetime of the intestate, and had survived him.*i Common-law Rule. At common law a posthumous child could take by descent,®^ although it was extremely doubtful how far he could take under the Statute of Wills, or by a limitation by way of contingent remainder.^ But as a freehold could not be in abey- ance by strict rule of the common law,^ an infant en ventre sa mire, succeeded only at its actual birth, the title meanwhile devolving on the " heir presumptive." At its birth the child could enter on the prior occupant.^ The Statute. It must be apparent that this section goes farther than the common law as stated by Watkins,®® for it expressly per- mits an abeyance of the seisin, as the child is now in esse only from the time of its birth for the purposes of descent.®^ If a Child en Ventre sa Mere is not Bom Alive. If a child en ventre sa mere be born dead or in such an early state of pregnancy as to be incapable of living, it is to be considered as if it had never been born or conceived, in so far as others claiming through such child are concerned.®* Tenant by Curtesy. Where a child is delivered by the Caesarean operation and immediately dies, it is not " issue bom alive " so as to entitle the father to curtesy.®^ *i Repealed, chap. 547, Laws of ** Supra, pp. 24, 279, 288, 310. 1896. «« Watkins, Descents, 131. Cf. Chal- 62Watkins, Descents, 131; Challis, lis, iii, 126. Ill, 126; I Black. Comm. 130; Mar- ^^Watkins, Descents, 131. sellis V. Thalhimer, 2 Paige, 35. *^ Mason v. Jones, 2 Barb, at p. ^ Supra, p. 304, under § 46, The 252. Real Prop. Law; Steadfast ex dem., 68 Marsellis v. Thalhimer, 2 Paige, etc. V. Nicoll, 3 Johns. Cas. 18, 22; 35. Mason v. Jones, 2 Barb. 229, 251, 252; 6" Marsellis v. Thalhimer, 2 Paige, Challis, III, and cases cited; Watkins, 35. Descents, chap. 4. Cf. McGillis v. McGillis, 154 N. Y. 532. 884 Children Born After Execution of Will. Children Born after the Execution of a Will. Children born after the execution of a parent's will, no provision being made for them, take, by statute, the same share of the real and personal estate of the parent which they would have taken had such parent died intestate. Such children do not take under the will or subject to any of its provisions.™ At common law the mere birth of children did not operate to revoke a will;''^ hence this enactment. ™2 R. S. 6s, § 49, as amd. by amendment of 1869, chap. 22, the chap. 22, Laws of 1869; Smith v. Revised Statutes did not apply to Robertson, 89 N. Y. 555; s. c, 24 the will of the mother. Cotheal v. Hun, 210; Drischler v. Vander Hen- Cotheal, 40 N. Y. 405, overruling den, 49 N. Y. Super. Ct. 508; Rock- Plummer v. Murray, 51 Barb. 201. well V. Geery, 4 Hun, 606; § 1868, ^i Cotheal v. Cotheal, 40 N. Y. 405, Code Civ. Proc. Prior to the 408. When Inheritance Sole or in Common. 885 § 293. Inheritance, sole or in common. — When there is but one person entitled to inherit, he shall take and hold the inher- itance solely ; when an inheritance or share of an inheritance descends to several persons they shall take as tenants in com- mon, in proportion to their respective rights. Formerly i Revised Statutes, 753, section 17: § 17. Whenever there shall be but one person entitled to inherit, accord- ing to the provisions of this Chapter, he shall take and hold the inheritance solely; and whenever an inheritance, or a share of an inheritance, shall descend to several persons, under the provisions of this Chapter, they shall take as tenants in common, in proportion to their respective rights.'^ Comment on Section 293. This section, transcribed from the Re- vised Statutes, was inserted in that revision in conformity with the earlier statutes of 1782'^ and 1786,''* which had both provided that whenever estates descended to two or more persons they should take and hold as tenants in common. It will be observed that the prior section of this act, providing for the succession of all lineal descendants and making the inheritance then partible equally,''^ does not provide that such lineals shall take as tenants in common. Nor do the sections providing for collateral descent provide that collaterals shall take as tenants in common.''^ He«*e this section is indispensable to regulate the kind of tenancy descendants and collaterals shall take by descent." So, when the Revised Statutes extended collateral succession beyond the acts of 1782 and 1786, so as to include both uncles and aunts, and their descendants,'^* it was necessary to provide specifically that they, if of the same degree, should not only inherit equal shares, but that they should hold as tenants in common. This section does not, however, modify one prior section of this act,™ and where the common law now prevails it has no application to the succession;*" so that presumably great aunts (being sisters) would succeed, if at all, as coparceners,*^ section 56 of this act being limited to grants and devises. 72 Repealed, chap. 547, Laws of T7 Cole v. Irvine, 6 Hill, 634, 638. 1896. 1^ Supra, §§ 286, 287, 288, The Real ''^ Supra, p. 845. Prop. Law. T* Supra, p. 845. 79 § 291, The Real Prop. Law. 75 § 282, The Real Prop. Law. so Hunt v. Kingston, 3 Misc. Rep. 76 §§ 286, 287, 288, The Real Prop. 309. Law. 81 2 Black. Comm. 187. 886 Alienism of Ancestor. § 294. Alienism of ancestor A person capable of inheriting under the provisions of this article, shall not be precluded from such inheritance by reason of the alienism of an ancestor. Formerly i Revised Statutes, 754, section 22: § 22. No person capable of inheriting under the provisions of this Chap- ter, shall be precluded from such inheritance, by reason of the alienism of any ancestor of such person.82 Comment on Section 294. The Revised Statutes first pro/ided that no person capable of inheriting should be precluded from such inheritance by reason of the alienism of any ancestor.^^ The original revisers intended thus to change what they call a harsh rule of existing law.** The common law had in England been changed in this respect by the act 11 & 12 William III, chapter 6,^ which was not a part of the law of New York, certainly after the general act repealing those English statutes not then re-en- acted in a new form as laws of New York.^^ Interpretation of this Section. This provision of the Revised Stat- utes was held strictly prospective in operation;®^ to embrace lineal, as well as collateral ancestors,** and estates derived ex parte materna as well as those derived ex parte paterna. While this sec- tion permitted citizens thereafter to inherit, notwithstanding they deduced title through an alien ancestor, yet it did not so change the course of descents as to enable one not an heir at law to suc- ceed in the place of one living and debarred by alienage,** or to permit aliens to inherit otherwise than as provided Dy law.®" *2 Repealed, chap. 547, Laws of ** McCarthy v. Marsh, s N. Y. 263; 1896. Lynch v. Clarke, i Sandf. Ch. 583, 83 I R. S. 754, § 22; § 294, The Real 637; Smith v. Reilly, 31 Misc. Rep. Prop. Law. 701 ; aflfd., Smith v. Smith, 70 App. 8* Note to chap. 2, part 2, R. S. ; Div. 286. vide infra. Appendix II. *" McLean v. Swanton, 13 N. Y. ^Cf. 25 Geo. II, chap. 40; Har- 535; McCarthy v. Marsh, 5 id. 263; grave, Notes, 8a, Co. Litt. Redpath v. Rich, 3 Sandf. 79; People 86 Jackson v. Green, 7 Wend. 333, v. Trvin, 21 Wend. 128; Heeney v. 339; Levy V. McCartee, 6 Pet. 10?, Brooklyn Benevolent Society, 33 log, no; Jackson v. Fitzsimmons. 10 Barb. 360, 368. Wend. 9; Banks v. Walker, 3 Barb. 90 gee authorities cited under § 5, Ch. 438, 446. The Real Prop. Law, supra, p. 114. 87 Redpath v. Rich, 3 Sandf. 79; Jackson v. Green, 7 Wend. 333. Alienism of Ancestor. 887 Section Refers to Dead, not Living, Ancestor. This section refers to such aHen ancestors as are dead, and not to those who are aHve."^ One cannot inherit in the place of a living person under this section.®^ "Ancestor " Embraces Collaterals. The term " ancestor," in this sec- tion, embraces collaterals, as well as lineals,*^ and " ascendants " are by statute treated as descendants.®* Descent through Illegitimates not Aided by this Section. Where the mother of an illegitimate is an alien and deceased, this section does not aid so-called brothers of such illegitimate to inherit from him, as the common law did not give inheritable blood to ille- gitimates.®^ The descent between brothers is immediate, not through the parent.®^ Treaties. Chapter 593 of the Laws of 1897 now enables aliens of a state or nation which confers like privileges on citizens of the United States to take, hold and convey real property in this State in the same manner, and with like effect as if such aliens were citizens.®'^ 91 People V. Irvin, 21 Wend. 128; 9* See chap. 106, Laws of 1904, Luhrs V. Eimer, 80 N. Y. 171, 179; amdg. § 288, The Real Prop. Law. Renner v. Muller, 44 N. Y. Super. Ct. 65 St. John v. Northrup, 23 Barb. 535; Lerreau v. Davignon, 5 Abb. Pr. 25; and see § 289, The Real Prop. (N. S.) 367, 370; Callahan v. O'Brien, Law, supra. 72 Hun, 216. Cf. Stewart v. Russell, ^^ Supra, p. 867; Renner v. Muller, 9J id. 310. 57 How. Pr. 229, 241. 92 McCreery's Lessee v. Somerville, w Supra, p. 104, under § 2, The 9 Wheat. 354. Real Prop. Law; Fay v. Taylor, 31 9^ Supra, pp. 865, 877; Renner v. Misc. Rep. 32. Muller, 57 How. Pr. 229, 241; Matter of Reeve, 38 Misc. Rep. 409, 412. 888 Advancements. § 295. Advancements — If a child of an intestate shall have been advanced by him, by settlement or portion, real or personal property, the value thereof must be reckoned for the purposes of descent and distribution as part of the real and personal property of the intestate descendible to his heirs and to be distributed to his next of kin; and if such advancement be equal to or greater than the amount of the share which such child would be entitled to receive of the estate of the deceosed,** such child and his descendants shall not share in the estate of the intes- tate; but if it be less than such share, such child and his descendants shall receive so much, only, of the personal property, and inherit so much only, of the real property, of the intestate, as shall be sufficient to make all the shares of all the children in the whole property, including the advancement, equal. The value of any real or personal property so advanced, shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; otherwise it must be estimated according to the worth of the property when given. Maintaining or edu- cating a child, or giving him money without a view to a portion or settlement in life is not an advancement. An estate or interest given by a parent to a descendant by virtue of a beneficial power, or of a power in trust with a right of selection, is an advancement. Formerly i Revised Statutes, 737, section 127, and i Revised Statutes, 754, sections 23, 24, 25, 26: § 127. Every estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust with a right of selection, shall be deemed an advancement to such descendant, within the provisions of the second Chapter of this Act.99 § 23. If any child of an intestate shall have been advanced by him, by settlement or portion of real or personal estate, or of both of them, the value thereof shall be reckoned, for the purposes of this section only, as part of the real and personal estate of such intestate, descendible to his heirs, and to be distributed to his next of kin, according to law ; and if such advancement be equal or superior, to the amount of the share, which such child would be entitled to receive, of the real and personal estate of the deceased, as above reckoned, then such child and his descendants shall be excluded from any share, in the real and personal estate of the intestate.^ 98 Spelled " deceosed " in Session 99 Repealed, chap. 547, Laws of 1896. Laws of 1896, p. 622. 1 Repealed, chap. 547, Laws of 1896. Advancements. 889 § 24. But if such advancement be not equal to such share, such child and his descendants shall be entitled to receive so much only, of the personal estate, and to inherit so much only, of the real estate of the intestate, as shall be sufficient to make all the shares of the children, in such real and personal estate and advancement, to be equal as near as can be estimated.^ § 25. The value of any real or personal estate so advanced, shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; otherwise such value shall be estimated, according to the worth of the property when given.s § 26. The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement.* Some Account of this Enactment. The doctrines of " advance- ments " by a parent, or person in loco parentis, spring from two sources, " equity " ^ and the " Statute of Distributions " (22 & 23 Car. II, chap. 10).® The chancellor long " favoured the heir," in analogy to the like legal doctrines, and consequently deprecated double portions to younger children, because they were at the expense of the heir. In a State where real inheritances are now partible, the maxim " equality is equity " applies with greater force, and the equitable presumption, that a sum paid by a parent to a child is intended as an " advancement," or ademption, is very strong in favor of other children, equally entitled, who receive nothing. The source referred to by Kent as the sole origin of the New York statute regulating advances, i. e., the English Statute of Distributions,'^ was re-enacted here in the year 1774.* It was subsequently re-embodied in the first general revision of the laws of the State,® and thence continued to the Revised Statutes.^'' The Statute of Distributions had no reference to real estate,^^ and 2 Repealed, chap. 547, Laws of hotchpot is older than the Statute 1896. of Distributions in London city. 3 Repealed, chap. 547, Laws of Tonlins, Litt. 307. 1896. ''22 & 23 Car. II, chap. 10, ex- * Repealed, chap. 547, Laws of plained by 29 Car. II, chap. 31, § 25; 1896. Terry v. Dayton, 31 Barb. 519, 523. 5 Spence, Eq. Juris. 427. Cf. Mess- * Laws of 1774, chap. 11. man v. Egenberger, 46 App. Div. 46, 9 2 J. & V. 71; Laws of 1787, chap. 49- 38. 64 Kent, Coram. 417, 418; Beebee 1° i K. & R. 535; i R. L. 311, 313; r V. Estabrook, 79 N. Y. 246; Terry v. R. S. 754, §§ 23, 24, 25, 26, supra. Dayton, 31 Barb. 519. But the cu.s- " Real estate among coparceners tom of bringing personal estate into was brought into hotchpot long be- 890 Advancements. consequently, until the Revised Statutes, the general doctrine of " advancements," if ever applied to real property, could have stood only upon the general principles of equity.^^ The Revised Stat- utes first applied the principle of the old Statute of Distributions to real estates as well as personal estates.^* The present statute now regulates the entire subject of advancements out of real estate." Construction of this Section. The term " advancements " is strictly a technical one, and not the equivalent of " advances." *^ It re- lates to children only, not to widows of intestates.^^ The sections of the Statute of Distributions, relating to " advancements " of per- sonal estate," and this section of The Real Property Law, relating to " advancements " of real estate,^* are to be read together, being in pari materia}^ Where a man dies leaving a will disposing of a part only of his estate, this section has no application. It does not apply to partial intestacy.^" Interest is not allowed, as a rule, on property or sums to be treated as " advancements." ^^ The question whether property given to children by parents is an advancement or a gift is a very troublesome one.^ fore the Statute of Distributions. i* § 295, The Real Prop. Law. 2 Black. Comm. 190. 19 Beebec v. Estabrook, 79 N. Y. 12 Parker v. McCluer, 5 Abb. Pr. 246, affg. 11 Hun, 523. - life and upon his death, to his issue then living ; but in case such issue shall die under the age of twenty-one years, or in case such issue shall die under the age of twenty-one years and without lawful issue, then to B in fee. Here, in both cases, the remainder to B would be valid as embraced by the terms of the sec- tion; but if the devise were to A for life, and after his death to B for the term of twenty-one years ; and upon the expiration of such term, to the eldest male descendant of A then living, and if there be no such male descendant then living, to C in fee. Here the period of twenty-one years being an absolute term, wholly unconnected with the infancy of any person entitled, both the term and all the remainders dependent on it would be void; and on the determi- nation of the life estate, the fee would descend to the heirs of the testator To prevent a possible difficulty in the minds of those to whom the subject is not familiar, we may also add, that an estate is never inalienable, unless there is a contingent remainder, and the contingency has not yet occurred. Where the remainder is vested, as where the lands are given to A for life, remainder to B (a person then in being) in fee, there is no suspense of the power of alienation; for the remainderman and the owner of the prior estate, by uniting, may always convey the whole estate. This is the mean- ing of the rule of law prohibiting perpetuities, and is the effect of the defi- nition in § 14." '"[§22 R. S.] The reasons of the provisions in this section are fully explained in the note to § 3 and 4. With respect to estates tail by implica- tion, the effect of the provision is already attained by those sections; but it is still necessary as a distinct enactment, in order to embrace limitations of chattel interests, and those cases in which the remainder is limited on the death of a person to whom no estate is given." '"[§24 R. S.] This section is indispensably necessary to produce that uniformity in the law, which it is the object of the Revisers to attain. By the strict rules of the common law, and for reasons purely technical no remainder can be limited on a life estate, in a term of years. Thus if a man possessed of a term, say of 100 years, grant it to A for life, and if he shall die during the term, then the residue of the term to B, A has an absolute interest, and the remainder to B is utterly void. The maxims of the common law also prohibit the creation of a contingent remainder of freehold, on a term of years, and the limitation of a fee upon a fee, on a contingency defeating the prior estate. Thus if an estate be granted to A and his heirs, but if he die without issue living at his death, then to B as a remainder, the limitation is void, as repugnant to the fee already given. No such repugnancy, however, is supposed to exist, if the same limitation is contained in a will, in precisely the same words; for although as a remainder, it is void, as an executory devise, it is unexceptionable and valid. 'Refers to I R. S. 724, § 22, supra, ^ Refers to i R. S. 724, § 24, supra, p. 283. p. 2S8. Notes of the Original Revisers. 999 ' None indeed of the restrictions which we have mentioned, except the second, which extends also to limitations of uses, are applicable to secondary uses and executory devises; so that in these cases, it is literally true that the validity, as we have before remarked, of a limitation, depends exclusively on the formal character of the instrument in which it is con- tained, z Blackstone's Com. (Christian's edition), p. 170, 173, 174. Fearne on Remainder, p. 423." ' " [§ 25 R. S.] This section embraces what are technically termed con- tingencies with a double aspect, but which more simply and with equal propriety may be termed alternate estates. As where an estate is given to A for life, and if he have any issue living at his death, then to such issue in fee; but if he die without such issue, then to B in fee. Here the remain- ders to the issue and to B are both contingent, but only one can take effect. It is obvious that these alternative dispositions, however numerous they may be, are free from objection, since as only one can vest, and by vesting, defeats all that are subsequent, the estate is not rendered inalienable for a longer period than if a single limitation only had been originally created. I L. Raymond, 203. 2 Black. Rep. 777." '"[§26 R. S.] It is a maxim that a contingency upon which a remain- der is limited, must be a common possibility, or in other words, a contin- gency that may reasonably be expected to happen; for if it involve a pos- sibility upon a possibility, or in the language of Mr. Fearne, 'require the concurrence of two several contingencies, not independent and collateral, but the one requiring the previous existence of the other, and yet not necessarily arising out of it,' it is considered too remote and is utterly void. This purely metaphysical distinction, worthy only of the schoolmen with whom it originated, the Revisers propose to abolish. It has no conceivable use but to produce litigation on the utterly unimportant question, whether a particular contingency is to be considered near or remote, a single or double possibility, a question which a man of common sense would almost be ashamed to argue, yet on the determination of which the fortunes of his clients may depend. If a remainder does not restrain the alienation of the estate beyond the period allowed by law, but if it take effect at all, must happen within the limits prescribed, of what consequence is it, or can it be, whether the contingency on which it is limited be near or remote? prob- able or improbable? Fearne on Rem. 378. 2 Coke's Rep. 51, b. Cruise's Dig. tit. 16, ch. 2, § 4 to 8." ' " [§ 27 R. S.] A remainder, properly so called, cannot be limited on a contingency, which, should it happen, will defeat the prior estate, before the period of its natural termination; in fewer words, it cannot be limited on a condition subsequent. This rule, it seems, is a consequence of the common law maxim, that none but the grantor or his heirs can take advantage of the breach of a condition, so that it is only by their entry that the conditional estate can be defeated. That entry, if made, defeats ' Refers to i R. S. 724, § 25, supra, ' Refers to i R. S. 725, § 27, supra, p. 291. p. 294. ' Refers i R. S. 724, § 26, supra, p. 292. 1000 Appendix II. the livery made on the creation of the original estate, and therefore of course defeats all subsequent estates dependent on the same livery — the remainder and the precedent estate fall together. Thus if an estate be granted by deed to A, who is then a widow, for lite, upon condition that if she afterwards marry it shall belong to B, the limitation to B is nugatory; for although A marries, her estate still continues, unless the heir of the grantor chose to avoid it by his re-entry, and then the remainder to B is also annulled. But if the estate was not expressed to be for life, if the grant had been to her during her widowhood, and in case of her marriage to B, this would have been a valid remainder, and the marriage of the widow would have entitled B to the immediate possession of the lands; for in such case it seems the estate to the widow is not an estate upon con- dition, but a limitation, or a condition not in deed, but in law. Thus it is that the rights of the remainderman are made to depend on a distinction as purely verbal as it is possible to conceive, for whichever form of expression is used, the estate of the widow is obviously meant to be precisely the same. It is meant in both cases, that she shall enjoy the lands so long as she remains a widow, and no longer, and that when she marries they shall belong to B. " This rule, however, that a remainder limited on a condition subsequent, is void, is not applicable to devises; for in a devise, although strict words of con- dition are used, yet if there is a remainder over, they are always construed as creating not a condition, but a conditional limitation, so that when the. condition is broken or performed, as the case may be, the remainder com- mences in possession, and the person entitled under it has an immediate right to the estate. The reason of this distinction we are told is, that a different construction would defeat the intent of the testator, and prevent the remainder from taking effect, since if it were a condition it would descend to the heir-at-law, whose Sntry would destroy the whole estate. This reasoning, it must be admitted, is sound and conclusive, and because it is so, we are desirous to apply it to deeds as well as wills. " It deserves to be remarked, that one of the few inaccuracies to be found in Blackstone, occurs on the subject of this note. He states it as a general rule, that where a remainder is limited on a conditional estate, the con- dition, for the sake of preserving the remainder, is always construed as a limitation; but the only case he cites in support of this position, arose upon wills. In respect to conveyances at common law, the contrary doc- trine is clearly established. Fearne on Rem., p. 3, 363, 391 to 3, 409, 10, and cases there cited. 2 Black. Com., 155, 6." ' " [§ 28 R. S.] This section is introduced to abolish a technical rule, commonly described by lawyers as the rule ' in Shelly's case.' The terms of this rule are, 'That when the ancestor by any gift or conveyance, takes an estate of freehold, and in the same gift or csnveyance, an estate is limited mediately or immediately to his heirs, or the heirs of his body, that the words heirs, &c. are always words of limitation of the estate, and not words of purchase.' (Shelly's case, i Rep. g.) In plain terms, the ancestor takes the whole estate, and the heirs if they take at all, can take only by ' Refers to i R. S. 725, § 28, 'supra, p. 298. Notes of the Original Revisers. 1001 descent, contrary, it is admitted to the natural meaning of the words and the clear intent of the grantor. That we may judge of the propriety of retaining this rule, it is proper to attend to the reasons given for its intro- duction. We are told that if the heirs were to take as purchasers, these consequences would follow: ' I. That the lord would be deprived of the wardship and marriage of the heir; "2. That the remainder being contingent, the fee would be in abeyance during the life of the ancestor: "3. That as a necessary consequence of the abeyance of the fee, its alienation during the continuance of the life estate would be suspended. "The first of these reasons is plainly not applicable in this state, where the feudal incidents of wardship and marriage do not exist, and as we have already shown, never have existed; and of the second and third reasons, it may be remarked, that if valid, they prove that contingent remainders, secondary uses, and executory devises ought never to have been allowed, and should at once be abolished; for the necessary effect of every species of contingent limitation, whether to the 'heirs' of the first taker, or to strangers, is to place the fee in abeyance and suspend its alienation until the contingency happens. "As affording a striking illustration of the mischiefs of the rule in Shelly's case, we refer to the celebrated case of Perrin v. Blake, which turned entirely on its meaning and application. The question, in every stage of the controversy, was admitted to be, whether the undisputed inten- tions of the testator, or this technical rule of construction, were to prevail. The suit (upon the issue of which depended the validity of a large jointure to a widow) commenced in the island of Jamaica, where the estate was situ- ated, in the year 1746. It was thence transferred to the courts in England, and after passing through them all, reached the house of Lords, on a. writ of error, and finally, in the year 1777, (the cause, we are told, being then ready for a hearing,) was ended by a compromise between the parties, leav- ing the law in the same uncertainty as if it had never arisen. On this state of facts, Mr. Hargrave remarks with much simplicity; 'It seems particular, that under any circumstances, a lady should not be able to know whether her jointure was good or not, for upwards of thirty years; and that at last the business should have no decision, but terminate in a compromise.' The legislature, it is presumed, will be anxious to make such provisions as to prevent the occurrence of such particu/ariHes herenlteT. " Whatever reasons may have existed for the original adoption of the rule in Shelly's' case, a few observations will show, that it ought now to be regarded as purely arbitrary and technical. Nor can any other motive for preserving it be stated, except that it may remain as one of the subjects on which the ingenuity of the bar is to be exercised at the expense of suitors. The rule does not apply unless the word ' heirs ' is used, although the terms actually employed are identical in meaning. Thus if the grant be to the father for life, remainder to the issue of his body, the remainder is good, and the father has a life estate only; but substitute ' heirs' for issue, you ' The name of Shelley is misspelled Shelly, throughout the Revisers' notes. 1002 Appendix II. give him a fee. Again; the estate of the ancestor must be a freehold, for if the limitation to the heirs be on a term of years, it is valid. Thus if the estate be given to the father for one hundred years, if he should so long live, and upon his death to his heirs, the heirs take as purchasers, and it is out of the power of the father to affect their rights. Yet it is obvious that the interest of the father is in fact an estate for life, and that the term of years is only introduced to evade the operation of the rule. In short the application of the rule, with the aid of a tolerably skillful conveyancer, may always be evaded; and its only practical operation is to defeat the intentions of those who are without sufficient advice and ignorant of the force of technical language. " The principles by which the Revisers have been governed, in proposing the alterations contained in this chapter, and indeed throughout the revision, may be very briefly stated. If a rule of law is just and wise in itself, apply it universally, as far as the reasons upon which it is founded extend, and in no instance permit it to be evaded; if it is irrational and fanciful, or the reasons upon which it is rested have become obsolete, abolish it at once. By adhering to these principles, we are well persuaded that the noblest of moral sciences may be redeemed from the complexity and mystery in which it is now involved; an immense mass of useless litigation be swept away, and an intelligent people, instead of complaining of the laws by which their rights are determined, as capricious, unintelligible or unjust, be led to confess their wisdom, and to rejoice in their mild and beneficent sway. (Cruise's Dig. Tit. Rule in Shelly's case; Fearne on Rem. no to 270; Hargrave's Tracts, 489; 4 Bur. 2,579.)" ^ " [§ 3*-* ^- S'] The case of posthumous children is provided for in the statute of descents; but the statute of 10 and 11 William III, t. 16, (Evans' CoUec. of Statutes, vol. i, p. 230,) entitling posthumous children to take by remainder, by a singular omission, has not been re-enacted in this state. Before the passage of this statute, it had frequently been determined in the English courts, that a contingent remainder to a son, to take efifect on the death of the father, became void by the death of the father, before the birth of the son entitled. And it is at least doubtful whether such is not at present the law in this state, where the limitation is by deed. (3 John. C. 18.)" ' " [§ 31 R. S.] This section may be thought superfluous as express- ing only the necessary consequence of a fair interpretation of the provisions of this article, considered in connexion with the chapter of descent; but it is deemed expedient to guard against possible misconstructions, by declar- ing explicitly the effect of the birth of a posthumous child in the case supposed." ' " [§ 32 R. S.] The object of this section is to extend to every species of future limitation, the rule that is now well established, in relation to an executory devise, namely, that it cannot be barred or prevented from taking ' Refers to 1 R. S. 725, § 30, supra, ' Refers to I R. S. 725, § 32, supra, p 304. p. 306. » Refers to i R. S. 725, § 31, supra, p. 304. Notes of the Original Revisers. 1003 effect t>Y any mode whatever. If it is consistent with public policy that the owners of lands should be permitted to restrain their alienation, by the creation of future contingent estates, it seems reasonable that they should be protected in the exercise of the power thus given, and that the law should not suffer their intentions to be frustrated by any fraud or device whatever. Where a future limitation is called an executory devise, it receives full protection from the law, yet no reason is perceived why the intentions of a party creating a future estate, ought not to be held equally sacred, whatever may be the technical name of the estate so created. The truth is, that the whole doctrine of the law in respect to the means by which contingent remainders may be destroyed, is strictly feudal. As the ingenuity of lawyers has long since invented an effectual mode of evading it, it answers no other purpose, at the present day, but to render titles more complicated, and to increase the expense and difficulties of alienation. It is a maxim of the common law, that the contingent remainder must vest either during the continuance of the preceding estate, or upon the very instant of its determination. Consequently every determination of the preceding estate, before the happening of the contingency, destroys the remainder. Thus if a tenant for life, with a contingent remainder to his children, make a feoffment, levy a fine, suffer a recovery, surrender to the person ultimately entitled to the inheritance, procure a release, or unite the inheritance to his own estate, the remainder is destroyed, and the rights of the issue, the principal objects of the bounty of the person creatin.g the estate, completely sacri6ced. To prevent these inconveniences and guard against the frauds of the tenant for life, trustees to preserve contin- gent remainders have been introdiiced, in whom the estate vests, in case of the alienation or forfeiture of the first taker, and who retain it until the contingency happens, on which the rights of the persons in remainder depend. The necessity and success of the remedy are a confession of the mischiefs of the doctrine which it avoids, but unfortunately it is a source in itself, of new evils, by rendering the title more complex, enabling the trustees by fraud to divest the estate, and compelling a frequent resort to the court of chancery for direction and relief. " The legitimate purpose of this invention, the protection of the interests of the persons entitled in remainder, will be effectually answered by plac- ing all contingent estates on the same footing as executory devises, and the end is thus attained in the most simple and direct manner, without the necessity of present expense, or the hazard of future litigation. "Another most important advantage to which we have not yet adverted, will result from reducing all expectant estates substantially to the same class. We shall prevent all future litigation on the purely technical ques- tion, to which class or denomination any particular limitation is to be referred. It is a well known rule, that no expectant estate, even if created by will, or a conveyance to uses, is to be construed as an executory devise or secondary use, if it be so limited, as to be capable of taking effect as a remainder, and some of the most difficult and abstruse cases to be found in the reports, have turned exclusively on the application of this rule. If the distinctions which create the necessity and difficulty of applying this rule, are of no practical value, if they have no existence in the intention of par- 1004 Appendix II. ties, and are not required by any considerations of public good, it will scarcely, we imagine, be thought necessary to preserve them merely for the sake of the litigation to which they give rise." ' " [§ 33 R. S.] A few words will show the propriety of the exceptions contained in this section. The meaning of the rule, which we are desirous to extend to all contingent estates, that an executory devise cannot be bar- red, is, that it shall not be prevented from taking effect, according to the intentions of the party creating the estate. It is therefore not applicable, where the power of defeating that estate is expressly reserved, or given, or where it is a necessary consequence of the nature of the contingency, on which the limitation depends. As where a remainder is limited on an estate for life, in a term of years, with a power to the tenant for life, to sell or devise — by the execution of the power, the remainder is destroyed; yet it is well settled, that both the power and the limitation are valid: so where an estate is devised to A and his h^irs; and if he or they refuse, within a certain time, to assume the name of the testator, then to B, in fee. Here A, by complying with the condition annexed to his estate, defeats the executory devise; but he does not bar it, in the sense of the rule; for he does not violate, but fulfils, the intent of the testator." ' " [§ 34 R. S.] We have before stated, that by the strict r-ules of the common law, a contingent remainder must vest, either during the continu- ance of the precedent estate, or on the instant of its determination; conse- quently, if the prior estate ceases before the contingency happens, the remainder is gone. Thus, if an estate be given to A for life, remainder to the heirs of B, if A die, during the life of B, as there is no person then com- petent to take, since there can be no heirs of one then living, the remainder is destroyed. To prevent this inconvenience is one of the purposes for which trustees, to preserve contingent remainders, have been introduced. Our objections to this device, we have already stated. We will now add, that we believe the position to be universally true, that where a rule of law is found by experience to be inconvenient or unjust, its direct abolition is preferable to its circuitous evasion, not only because a needless complexity is thus avoided, but because the means of evasion are always attended with expense, and productive of litigation. The rule that we are now consider- ing is either sound in principle and salutary in operation, or it is not: if it is then it ought to be enforced, and an estate to trustees, in order to pre- vent it from attaching, should be annulled, as a. fraud upon the law. If it is not, (and that it has no present foundation in reason or good sense is admit- ted by all,) surely we ought not lo retain an inconvenient rule, merely because the ingenuity of lawyers has provided a mode by which its applica- tion may be eluded, and its mischiefs prevented." 2 " [§ 37, 38, 39 R. S.] The English statutes for restraining trusts, and directions for the accumulation of profits, to which we have before referred; ' Refers to i R. S. 725, § 33, supra, ' Refers to i R. S. 726, §§ 37, 38, 39, p. 306. supra, pp. 318, 324. « Refers to I R. S. 725, § 34, supra, p. 310. Notes of the Original Revisers. 1005 (§ 39 and 40 Geo. III. ch. 98; Evans' Collection, v. I, p. 245J prohibit accumulation for any longer time than, " I. During the life of the grantor and twenty-one years thereafter, where the direction for the accumulation is by deed, and where it is by will, twenty-one years from the death of the testator; or " 2. During the minority of any person or persons; who shall be living or conceived at the death of the grantor or testator directing the accumulation; or, " 3. During the minority of any person or persons, who, under the deed or will directing the accumulation, would, if then of full age, be entitled to such rents and profits. " It is to the period last indicated, that the Revisers proposed to confine the power of accumulation, conceiving that this restriction furnishes the most effectual means of guarding against the abuses, to which directions of this nature are admitted to be liable, and believing that it embraces the only case in which the purpose of the accumulation is such as ought to be sanctioned, namely: for the benefit of infants entitled to the next eventual estate. The British statute further declares, 'that the rent, &c., of prop- erty so directed to be accumulated, so long as the same shall be directed to be accumulated contrary to the provisions of the act, shall go to and be received by such person as would have been entitled thereto, if such accumu- lation had not been directed.' Thus, in plain terms, (as it seems to us,) avoiding the accumulation not entirely, but only during the excess of a term beyond the period before limited; and this we understand to be the construction which the statute has received. "The propriety of permitting the rents and profits to be applied, under the direction of the chancellor, to the support and education of infants, who, if of full age, would be entitled to them, we presume will not be doubted. This provision will effectually prevent such an unnatural abuse of power, as was practised by Mr. Thelluson, in the will which occasioned the passage of the British act. This gentleman, that he might gratify his death-bed vanity with the conviction that an enormous estate would be secured to his distant posterity, left his immediate descendants in a state of comparative destitution, consoling them by the remark, 'that if prudent and industrious,' they might, as he had done, acquire estates for themselves. The British statute contains an exception of provisions made for the pay- ment of debts, and the raising of portions. Should this exception be deemed expedient, the Revisers recommend the following section, which embraces it in a qualified form: " § 41. The preceding section shall not be construed to extend to any trust or direction, in any grant or devise, for accumulating the rents and profits of lands for the payment of debts, or for raising a portion for any child or descendant of the grantor or testator; but no such trust or direction shall be valid, for any longer period than twenty-one years from the death of the grantor or testator." " [§ 39 R- S.] This section is adopted substantially from the work of Mr. Humphreys, to which we have before referred. His reasons for it are ' Refers to a section in the Revisers' Cf. Becker v. Becker, 13 App. Div. draft, omitted by the Legislature. 342. supra, p. 375. 1006 Appendix II. thus given: 'A distinction, refined, but substantial, subsists under our law, between estates vested, but defeasable — as a limitation to the first son of A, but if he shall die under the age of twenty-one, then to his second son — and a contingent estate as a limitation to such a son of A, as shall first or alone attain the age of twenty-one. In the latter case, nothing vests, and consequently the rents are undisposed of, and belong as such to the donor and his heirs, in the interium; yet there is no doubt but the donor, were this distijiction explained to him, would in the latter case as well as in the former, give the accruing rents to the infant donee.' (Humphreys on Real Property, p. 260.) A still stronger reason for adopting the section, is furnished by § 35 of this Article, which prevents a future estate from being defeated by the determination of the precedent estate before the happening of the contingency, on which the remainder is limited. If that section be adopted and the present omitted, the rents and profits during the interval between the determination of the prior, and the vesting of the contingent estate, would go to the heirs, contrary to the very plain intention of the person creating the estate. As the law now is, the rents, &c. may be, and generally are, preserved to the remainderman, by the intervention of trustees. But to dispense with the necessity of creating such trustees, is one of the benefits we propose to attain." ' Article II. — 0/uses and trusts'^ 1 ' [i R. S. 728, § 55, except in sub. 3, the words "or either" inserted by the legislature, in lieu of "or support only," in the report. The section as enacted, was afterwards amended by the act of the 20th of April, 1830 (reported by the Revisers), by striking out the words "education and support, or either" and substituting the word "use," in lieu thereof.] Original note to the amendment proposed in 1830. "The word 'use' includes education and support, and each of them. It will also include other purposes, which ought to be provided lor." ^ Original notes to this Article. " The modified abolition of uses and trusts, which is proposed in this Article, is doubtless an extensive, and may per- haps be viewed by some, as an alarming innovation. The Revisers will therefore be pardoned for saying, that their opinions on this subject, the slow result of much examination and reflection, have settled in the convic- tion, that every plan to reform and simplify the law of real property, which shall not contain substantially the change now recommended, will be found imperfect, and in a great measure ineffectual. " That some reform in this branch of the law is necessary, will be denied by few, who are sufficiently familiar with the system as it now exists, and have considered with any care, its actual and undeniable defects. In 'The following notes on Uses & 'Refer to article II, part II, R. S. Trusts refer to the sections of the on Uses & Trusts. This is a most Revised Statutes now recodified in valuable dissertation by the original article III of The Real Prop. Law, draftsmen on the entire scheme of supra, pp. 343-456. reform, « Refers to i R. S. 728, § 55, supra, p. 365- Notes of the Original Revisers. 1007 England, the necessity of such a reform was confessed, during the last ses- sion of its parliament, by the leading statesmen of every party; and in consequence of the success of Mr. Brougham's motion, founded on his cele- brated speech, commissioners have been appointed, to whom, with other subjects, the trust of inquiring into the state of the laws of real property, and reporting suitable changes and improvements, has been specially committed. "The subject is too large to admit of a full discussion within the limits of a note; but its importance demands that we should attempt some explana- tion of the reasons which have produced the conviction that we have avowed, and led to the amendments that we have proposed. "It is justly remarked by Mr. Cruise, in the preface to his admirable digest, that ' the law of real property is the most extensive and abstruse branch of English jurisprudence.' That law has undergone many salutary changes in this state; yet the observation of Mr. Cruise is still true, even when applied to the system as adopted and modified by ourselves. Such indeed are its extent and intricacy, that even in the legal profession, it is very imperfectly understood by any, who have not made it an object of peculiar study and attention; and so remote are its principles and maxims from ordinary apprehension, that to the mass of the community, they seem to be shrouded in impenetrable mystery. It is surely needless to add, that in the same proportion as the law is complex and obscure, is litigation frequent, expensive and uncertain. Ignorance of the law is the parent of controversy; and that ignorance must always continue, whilst the avenues to knowledge are difficult to all, and to most inaccessible. Under such circumstances, it is plainly a duty to inquire into the source of these evils, the means of their removal, or the necessity of their continuance. If the defects of the system spring unavoidably from the nature of the subject which it is framed to regulate, we must submit to their continuance; but if they are accidental and factitious, we ought diligently to see, and firmly to apply, the necessary remedies. " The first inquiry, therefore, is, considering the nature of the subject, is there any necessity that the laws of real property should be, in a peculiar degree, extensive and abstruse? " If we direct our attention to the laws of other nations and countries, we shall find, perhaps to our surprise, that so far as they relate to real prop- erty, they are in a measure free from the objections to which our own sys- tem is liable. In the civil law, the regulations concerning the enjoyment, alienation and transmission of real estate, comparatively speaking, are neither numerous, nor difficult to be understood, and in the Code Napoleon, they form a very small and perfectly intelligible portion of that immortal work. It is not extravagant to say, that the French law of real estate, may be sufficiently understood by a few days of diligent study. " If we look to the objects which laws in relation to real property are meant to attain, they do not seem to present any intrinsic difficulties, that should prevent us from framing a simple and intelligible system. The owner is to be protected in the enjoyment of his property; his power of dis- position is to be defined; the transmission of his estate to his descendants or relatives, is to be regulated; its mode of alienation is to be prescribed; its liability to the claims of creditors must be secured, and to purchasers, 1008 Appendix II. the means of investigating the ownership must be afforded. The proper rules on these various subjects would seem derivable, from a few principles of clear and general utility, level to the comprehension of all whose rights are to be affected by their application. We have no difficulty in believing, that every man of common sense may be enabled, as an owner of real property, to know the extent of his rights, and the mode of their exercise; and as a purchaser, to judge, with some assurance, of the safety of the title he is desirous to acquire. "It appears a necessary conclusion, from these remarks, that if our law of real estate is voluminous and obscure, in a particular degree, it is to peculiar causes that these defects are owing, and this conclusion is amply justified, when we advert to the history of this law, and the character of its provisions. " It is not an uniform and consistent system, complex only from the mul- titude of its rules, and the variety of its details; but it embraces two sets of distinct and opposite maxims, different in origin, and hostile in prin- ciple. We have first, the rules of the common law, connected throughout with the doctrine of tenures, and meant and adapted to maintain the feudal system, in all its rigor; and we have next, an elaborate system of expedients, very artificial and ingenious, devised in the course of ages, by courts and lawyers, with some aid from the legislature, for the express purpose of evading the rules of the common law, both in respect to the qualities and the alienation of estates, and to introduce modifications of property before prohibited or unknown. It is the conflict continued through centuries between these hostile systems, that has generated that affinity of subtleties and refinements, with which this branch of our jurisprudence is overloaded. " It is this conflict which seems to have involved the law of real property in inextricable doubt, whilst nearly in every case, as it arises, the uncer- tainty is, whether the strict rules of ancient law, or the doctrines of modern liberality are to prevail; whether effect is to be given to the intention, or a technical and arbitrary construction is to triumph over reason and com- mon sense. "The truth of these observations is illustrated in a striking manner, by the history and progress of the law of uses and trusts. " The severe burthens and numerous restrictions which the feudal law imposed on real property, are generally known. It was a system that could flourish only in a barbarous age, and under a despotic government. "It consulted solely the interests of the monarch, and a landed aris- tocracy; and to maintain their power, the real owners and cultivators of the soil were to be held in military bondage. If a nation was to advance at all in civilization and freedom, it was quite impossible such a system could be perpetuated, and it was to relieve those who were groaning under its oppression, yet had not the means or power of procuring its direct repeal, that uses were first invented. " An use, (as uses existed previous to the statute of uses,) may be defined a confidence reposed in the owner of lands, that he would permit another person to enjoy the possession, receive the profits and direct the disposition. " It was a device by which, whilst the formal title remained in one, the whole beneficial interest was vested in another. Notes of the Original Revisers. 1009 "The success of this invention was, for a longtime, doubtful. At an early day, the courts of common law held that uses were invalid, in other words, that the beneficial owner had no estate or right whatever, but that the absolute property discharged from any trust, was vested in the person having the legal title. The court of chancery, however, was more indul- gent. The powers of that court were at that day administered by church- men, and the interests of the church in evading the statutes of mortmain, required that uses should be favored. "By the aid of chancery, therefore, the legal owner was compelled to permit the person entitled to the use, to enjoy the possession and profits, and was obliged to execute such conveyances as he might direct. The dis- tinction between legal and equitable estates was thus introduced, and uses, notwithstanding the constant opposition of the courts of law, became firmly established. "The advantages of uses, as thus established, in mitigating the evils of the feudal system, were very great. The equitable estate was not liable to forfeiture for treason or felony, nor subject to the feudal burthens of ward- ship, marriage, &c. &c. The power of disposition in the equitable owner was greatly enlarged, and the feudal restraints on alienation, to a consider- able extent, eluded. The equitable owner, although the statute of wills was not yet in force, was even enabled to pass his property by devise, since his trustee was always compelled to execute such conveyances as he directed, whether to take effect during his life, or after his death. ' On the other hand, uses were attended with many inconveniences, and led to great abuses. They tended to defraud creditors who had no remedy against the equitable estate, and purchasers, whose conveyances or leases from the equitable owner, the trustee could always avoid. They enabled the trustee, by conveying, or submitting to a disseisin, and by other means, to defeat the rights of the beneficial owner; and a frequent resort to equity became necessary, to compel him to perform the trust. And, in our judg- ment, above all, by separating the legal and equitable estate, and intro- ducing two classes of rights over the same lands, governed by different rules, and subject to different jurisdictions they rendered titles perplexed and obscure, and multiplied litigation. " To remedy these and other alleged inconveniences, various statutes of partial operation were passed, previous to the statute 27 H. VIII, ch. 10, from which our statute of uses was borrowed. " The last statute did not contemplate a partial reform, but was meant to reach the evils in its whole extent, by abolishing the distinction between the title and the use, and converting, in all cases, the interest of the bene- ficial owner into a legal estate. " This, which it is admitted by all was the principal intent of the legis- lature, was, however, entirely defeated by the narrow construction of the statute, which the courts of law unfortunately adopted. The statute declared, in substance, that whenever one person is seised to the use of another, the person so entitled to the use, should also be entitled to the possession and legal estate; and the judges, adhering to the letter, and overlooking the spirit of the law, decided, that where successive uses are contained in a conveyance, it is the first use only, which, in technical Ian- 64 1010 Appendix II. guage, is executed by the statute. Thus, a grant to A, to the use of B, to the use of C, was held to vest the legal estate by force of the statute in B, whilst C retained the beneficial ownership, in the same manner as if the statute had never been passed. " In such cases, therefore, the whole effect of the law was to change, not the estate, but the trustee. "The consequences of this rigid construction are generally known and still exist. Uses, under the name of trusts, were immediately revived and extended, and that separation of legal and equitable estates, which it was the main object of the legislature to prevent, was perpetuated. " It must not, however, be supposed that the statute of uses was entirely inoperative. It was, in fact, attended with important and durable conse- quences on the law of real estate. The statute did not abolish existing uses, nor prohibit conveyances to uses in future. It only declared that both existing and future uses, as they arose should become legal estates; and the effects of thus permitting the creation of uses, were, " I. As every deed capable of raising an use was, by force, of the statute rendered also capable of passing the legal estate, new forms of conveyances were introduced, by which the title and the possession of lands were trans- ferred without livery of seisin, which, at common law, was indispensable. "2. The new modifications of property, which the increasing wants of society demanded, but which the genius of the feudal law forbade, were preserved by retaining uses, to which they owed exclusively their origin. " It must therefore be admitted, that the statute of uses, although not productive of all the benefits intended, has been, to a considerable extent, salutary in its operation; but to retain these advantages, it is not at all necessary that uses should themselves be retained. " To uses, even as they now exist, there are strong, and as they seem to us, unanswerable objections: " I. They render conveyances far more complex, verbose and expensive, than is at all requisite, and they perpetuate in deeds, the use of a technical language, which, although intelligible to lawyers, is to the rest of the com- munity a mysterious jargon. "2. Where a conveyance to uses contains limitations intended to take effect at a future day, they may be entirely defeated by what is technically called a disturbance of the seisin, in other words, by a forfeiture or change of the estate of the person seised to the use. "3. It is frequently very difficult to determine, whether the uses in a conveyance are so created as to be executed by the statute, and whether a particular limitation is to take effect as an executed use, as an estate at common law, or as a trust. These difficulties are, and must continue, whilst uses are preserved, a constant source of litigation. " It is to remove these serious inconveniences, (and others not of trifling import might be added,) that the Revisers propose the entire abolition of uses, whilst, by the new provisions which they have suggested, all the bene- fits admitted to flow from the present system, are retained and increased. By making a grant without the actual delivery of possession or livery of seisin, effectual to pass every estate and interest in lands, (as is proposed in a subsequent article,) the utility of conveyances deriving their effect from Notes of the Original Revisers. 1011 the statute of uses, is superseded, and a cheap, intelligible and universal form of transferring titles is substituted in their place. The new modifica- tions of property which uses have santioned, are preserved by repealing the rules of the common law, by which they were prohibited, and permitting every estate to be created by grant, which can be created by devise. And this is the effect of the provisions in relation to expectant estates, con- tained in the first Article of this Title. " It only remains to speak of trust, as they now exist by law, and the changes in relation to them, which the Revisers propose. There are three classes of trusts, each requiring to be noticed, " I. Where the trustee has only a naked and formal title, and the whole beneficial interest or right in equity to the possession and profits^ is vested in those for whose benefit the trust is created. "2. Where the trustee is clothed with some actual power of disposition or management, which cannot be properly exercised, without giving him the legal estate and actual possession. "3. Trusts arising or resulting by implication of law. " As to the first class, or formal trusts, it is plainly needless to retain them. They separate the legal and equitable estate, for no purpose that the law ought to sanction. They answer no end whatever, but to facilitate fraud; to render titles more complicated, and to increase the business of the court of chancery. They are, in 'ir^\^M.^ precisely what uses were before the statute of uses, and are liable to many of the same objections. Formal trusts, we therefore propose to abolish, by converting those which now exist into legal estates, and prohibiting their creation in future. This is substantially to carry the statute of uses into effect, according to its original intention. " The second class, or active trusts, as a late writer, (Mr. Humphreys,) has properly termed them, are recognized in every system of law, and their utility, under proper restrictions, is undeniable. They seem, indeed, indis- pensable to the proper enjoyment and management of property. The Revisers, therefore, propose to retain them, only limiting their continu- ance, (for reasons stated in a subsequent note,) and defining the purposes for which they may be created. " As to implied trusts, they cannot be abolished, as their existence is necessary to the prevention of fraud. An important change is however proposed, in preventing a secret resulting trust from being created by the act of the party claiming its benefit. This change, (which is recommended also by other reasons,) is indispensable, if the other parts of the plan are adopted; since otherwise, the prohibition to create formal trusts in future, would be readily evaded, and they would continue, in substance, to exist, and in their worst form. "The Revisers will not conceal that they attach much importance to the provisions of this Chapter, and feel a serious anxiety that they may be adopted by the legislature. That anxiety they would fain hope, does not arise from any selfish motives, but springs from the sincere belief, that these provisions, if adopted, will sweep away an immense mass of useless refinements and distinctions; will relieve the law of real property, to a great extent, from its abstruseness and uncertainty, and render it, as a sys- tem, intelligible and consistent: that the security of creditors and pur- 1012 Appendix II. chasers will be increased; the investigation of titles much facilitated; the means of alienation rendered far more simple and less expensive; and finally, that numerous sources of vexatious litigations, vifill be perpetually closed." ' " f § 46 R. S.] It seems proper to confirm all uses already executed as legal estates, in order to prevent the possible construction that they are included in the general abolition of uses." ' " [§ 47 R. S.] This section will convert all formal trusts into legal estates in the beneficial owner, and thus effectuate the original intent of the statute of uses. The term 'assignment,' is introduced that there may be no doubt of the intention of the legislature to include the transfer of chattel interest. It has been frequently decided, that the assignment of an existing term for years is not reached by the present statute of uses, nor has any writer attempted to explain the reason of this singular omission. Its effect is this. If a term of 500 years is granted to A, to the use of B, by force of the statute B takes a legal estate ; but if B, the moment he has received the grant, assigns his whole interest to D, to tJie use of C, the use in C is not executed, so that the legal estate vests in D, and although C has the whole actual interest, it is in equity only that his rights are acknowl- edged. Thus by the creation of long terms, and their immediate assign- ment, the provisions of the present statute, to all practical purposes, may be completely evaded. We add an extract from Mr. Brougham's late speech on the state of the law, from a natural desire to confirm our own views by the authority of the most distinguished statesman and eminent lawyer that England now possesses. " ' I would restore the statute of uses (says Mr. B.) to what it was clearly intended to be. Our ancestors made that law, by which, if land was given to A, for the use of B, the latter was deemed the legal owner; the use being executed in him just as if A did not exist. It was justly observed by lord Hardwicke, that all the pains taken by this famous law, ended in adding three words to a conveyance. This has been said by conveyancers to be a severe remark, but it is perfectly correct, for the courts of equity invented secondary uses of trusts, by holding with the courts of law, that the statute did not apply to lands given to A to the use of B, in trust for C; therefore the whole provision is evaded by making the gift to the use of B in trust for C, and those three words send the whole matter into chancery, contrary to the plain intent of the statute. Can there be any reason whatever for not making all such estates legal at once, and restofring them to the juris- diction of the common law, by recognizing as the owner, the person to whom the estate in reality is given, and passing over him who is a mere nominal party?' (Brougham's speech on the present state of the law, Phil, ed. p. 66, 67.)" 3" [§ 4q. The section to which the note refers, only partially adopted in § 49 R. S.] To effect the entire abolition of uses and formal trusts their future creation must be prevented, so that this section is indispensable, if 'Refers to I R. S. 727, §46, supra, '^ Refers to a section partly adopted; p. 344- I ^' S. 728, § 49, supra, p. 356. 'Refers to i R. S. 727, § 47, supra, P- 350- Notes of the Original Revisers. 1013 the views of the Revisers are embraced by the legislature. Why indeed should uses and trusts be continued for the mere purpose of converting them into legal estates as soon as they arise? unless it is thought desir- able that conveyances should continue complex and obscure, and difficult questions of title be perpetuated. To prevent a possible inconvenience, the operation of the section is suspended for a year, so that during that period uses, &c., as they are created, vifill be changed into legal estates, as under the present statute of uses. An additional guard is provided in a subsequent article of alienation by deed, in which it is declared that every deed of bargain and sale, (the conveyance almost universally used,) shall be construed as a grant, and the bargainee be deemed an alienee within the meaning of this section; so that the estate will be preserved even in cases where the present form of conveyance shall continue to be used. As the law now is, the interest of the grantee in a deed of bargain and sale, is an use, and the effect of the deed in passing the legal estate, is founded on the statute of uses." ' " [§ i^< 52> 53 R- S.] A principal reason for the adoption of § 52, has been stated in the preliminary note, that without it the prohibition of formal trusts might be rendered nugatory. There are other reasons that seem equally imperative. Why should a man purchasing lands for his own benefit, take the conveyance in the name of another? Can his motives be other than fraudulent ? or if this secret mode of acquiring title be per- mitted, it is not to purposes of fraud, that will be abused? If a resulting trust of this description be an executed use; and that it is so, has been decided by our supreme court, then the person paying the consideration, even where the fact of such payment is not stated in the deed, acquires the legal estate, upon the strength of which alone he could recover the posses- sion and avoid any conveyances of the nominal grantee. Under such cir- cumstances, no purchaser would be safe, and the whole policy of the law requiring conveyances to be recorded, would be defeated. The utility of the provisions in § 53 and 54, seems too obvious to require any remarks. ""[§55 !?.• S.] As the creation of trusts is always in a. greater or less degree the source of inconvenience and expense, by embarrassing the title, and requiring the frequent aid of a court of equity, it is desirable that express trusts should be limited as far as possible, and the purposes for which they may be created, strictly defined The object of the Revisers in this section is to allow the creation of express trusts, in those cases and in those cases only where the purposes of the trust require that the legal estate should pass to the trustees. An assignment for the benefit of cred- itors, would in most cases be entirely defeated, if the title were to remain in the debtor, and where the trust is to receive the rents and profits of lands, and to apply them to the education of a minor, the separate use of a mar- ried woman, or the support of a lunatic or spendthrift, (the general objects of trust of this description,) the utility of vesting the title and possession in the trustees, is sufficiently apparent. After much reflection, the Revis- 1 Refers to I R. S. 728, §§ 51, 52, 53, ' Refers to i R. S. 728, § 55, now supra, p. 359. § 76, The Real Prop. Law. Vide szi- pra, p. 365. 1014 Appendix II. ers have not been able to satisfy themselves that there are any cases not enu- merated in this section, in virhich, in order to secure the execution of the trust, it is necessary that the title or possession should vest in the trustees. Where no such necessity exists, (as where the trust is to convey, or to make partitions, &c.,) it is obvious that without giving any estate to the trustees, the trust may as well be executed as a power. And that trusts of this kind may not be entirely defeated, it is provided in § 59, that they shall take effect in the manner suggested. "Should it be thought desirable by the legislature, that preferences amongst creditors in future be abolished, the object, so far as relates to real property, may be attained by an amendment of this section. " To the first subdivision of the section, add the words 'generally and without preference to any particular creditor or class of creditors; ' the Revisers have thought it their duty to make this suggestion, but they wish not to be understood as expressing any opinion as to the propriety of its adoption." ' " [§ 58 1^. S.] There is an evident distinction between a trust to sell, created by deed, and a similar trust created by devise. In the first case, as we have before remarked, it is necessary that the trustees should take the estate, or the trust itself might be defeated; but in the latter, no such neces- sity exists, and by construing the trust as a power, the interests of those for whose benefit it is created, are as effectually secured, as if the legal estate passed to the trustees. On the death of the testator the power attaches immediately on the land, and no subsequent disposition can be made, nor incumbrances created, by which its execution can be defeated. " There are other reasons, however, which have weighed principally with the revisers in recommending this section; under the present rules of law, the construction of a will containing an authority to executors to sell, is a matter of great difficulty; and the question whether the trust is to be con- strued as a naked authority, or as a power coupled with an estate or interest in the lands, has been n. frequent source of litigation. Thus according to Lord Coke, if a man devise that his executors 'shall sell his lands, they have a bare authority and no interest; but if he devise his lands to be sold by his executors, they take the legal estate.' It is true Mr. Hargrave in his note on the passage speaks of this distinction as curious and overstrained, yet there seems a decisive weight of authority in its favor. We would abolish this and similar distinctions, not merely as curious and overstrained, but as entirely useless, unless to propagate law suits. " In a subsequent article ' of powers,' we have provided that no injury shall result to the persons interested in trusts of this description, from con- sidering them merely as powers, by declaring that they shall survive, and in other respects be subject in their execution to the same rules as express trusts. " As an additional authority in support of our views, we add the recom- mendation of Lord Coke himself, who says, ' it is better for a testator to give to his executors an authority, than an estate, unless his meaning be they should take the profits of his lands in the mean time.' Coke Litt., 113, a. & Har. & Bu^. note; Sugden on Powers, 140; 6 John. Rep., 92.") ' Refers to i R. S. 729, § 58, supra, p. 402. Notes of the Original Revisers. 1015 ' [§ 64, 65 R. S.] The effect of § 64, will be in a great measure to abolish secret trusts, the common instrument of fraud, by making it the interest of the parties in all cases, that the trust should be incorporated in the con- veyance; and by § 65, the rights of those entitled to the execution of the trust, are effectually protected. Where the trust is expressed in the deed to the trustees, it is just that purchasers should be presumed to have knowledge of the trust. " To abolish secret trusts entirely, by requiring in all cases, the trust to be incorporated in the deed, does not seem advisable. It can only be effected by rendering void the conveyance or the trust. By the first mode, purchasers and creditors of the trustees would be defrauded; by the second, the trustees would acquire an absolute estate to the prejudices of innocent persons interested in the trust." ' " [§ ^^ R- S.] The injustice of the existing rule which in most cases requires purchasers and other persons dealing with trustees to look to the application of the moneys paid, at the hazard of losing the estate, or being conipelled to make a second payment, is very apparent, and has been fre- quently admitted, by judges who felt themselves constrained to obey the rule itself. That it ought to be abolished, we think will hardly be doubted. Mr. Humphreys* late work on real property, contains a similar proposition, and we have much pleasure in subjoining his remarks. ' This proposition is introduced to correct a. vicious result from the rule that ' in equity the trust is the land; ' arguing from this, it is held, that whoever purchases from or otherwise deals with the trustee, must (unless in a few impracticable cases, as where the trust is for payment of debts generally) see that the produce of the trust fund goes to the cestui que trusty or beneficial owner; thus treating as nothing, the confidence reposed in the trustee. The incon- venience of the rule and its constant frustration of the proposed object, Tias occasioned the introduction into the generality of trust assurances, of a special clause, that the receipts of the trustees shall be discharges to pur- chasers and others. But that must be a bad rule against which the very par- ties provide, who are meant to be protected by it; sometimes equity strug- gles against its own rule by new distinctions, which in their turn generate new litigation.' (Humphreys on Real Property, p. 305.) " We add an example of the distinction to which Mr. Humphreys alludes: " If lands be devised to executors, to be sold in trust for certain persons named, the purchaser is bound by the rule; but if the direction be, that the trustees pay or distribute the purchase moneys to the same persons, or invest the same for their benefit, the rule, it is held does not apply. In plain terms, its application depends on a verbal distinction. It is to the work of Mr. Humphreys, from which our quotation is taken, that Mr. Brougham alludes, in his celebrated speech. After speaking of the exer- tions of Sir Samuel Romilly and Sir James Mackintosh, for the reform of the criminal law, he adds: 'I am sure an almost equal debt of gratitude has been incurred, on the part of the law of real property, to the honest, patient and luminous discussion which it has received from one of the first ' Refers to i R. S. 730, §§ 64, 65, ' Refers to i R. S. 730, § 66, supra, pp. 420, 422, supra. p. 434. 1016 Appendix II. conveyancers and lawyers this country could ever boast of. Those members of the house that are conversant with our profession, will easily understand that I can only allude to Mr. Humphreys' (Brougham's Speech, p. 4). Although differing from many of the views of Mr. Humphreys, and by no means inclined to adopt the language, in which he has expressed his pro- posed enactments, we cheerfully acknowledge, that in the preparation of this chapter, we have derived most important aid from his valuable work." ' " [§ 68 R. S.] As every trust is founded on a personal confidence reposed in the trustee, it ought naturally, and by the very intention of the party, to cease with the life of the trustee. No reason, it seems to us, can be assigned, why it should pass to his representatives, persons probably unknown to the party creating the trust, and in many cases, very unfit to execute his wishes. In addition to this, there are very serious inconven- iences attending the transmission of trusts. It is frequently difficult to determine in whom the trust estate has vested, whether it has passed under a general or residuary devise, (for the estate of the trustee is devisable,) or has descended to heirs. In other cases, the person to whom the estate hg-s passed, cannot be easily discovered, or is absent from the country, or labors under some legal incapacity; and then the alienation of the estate, or exe- cution of the trust by ether means, may be suspended for years, until the necessary inquiries are made; or at great expense, a suit in chancery has been instituted, and the proper decree obtained." "The remaining sections do not seem to require any particular observa- tions. They enlarge, in some respects, the powers of the chancellor; but the propriety of the enlargement it is thought will not be doubted." " Article III. — Of powers ^^ 2 Original notes to this Article. " If the first and second Articles of this Title are adopted, a new regulation of powers in relation to lands, becomes indis- pensable, since it is from the statute of uses that such powers, as they are now constituted, derive their efiicacy. We regard it as one of the chief benefits to result from the abolition of uses, that it affords an opportunity of placing the doctrine of powers on rational grounds, by bringing them into harmony with the general system of our laws, and adapting them to the state of our society, and the policy of our institutions. " The law of powers, as all who have attempted to master it, will readily admit, is probably the most intricate labyrinth in all our jurisprudence. Few, in the course of their studies, have been called to enter it, who have not found it difficult to grope their way in its numerous and winding pas- sages. In plain language, it abounds pre-eminently in useless distinctions and refinements, difficult to be understood, and difficult to be applied, by which a subject, in its own nature free from embarrassment, is exceedingly ' Refers to I R. S. 730, § 68, supra, IV of The Real Prop. Law, pp. 457- P- 440- 557, supra. The dissertation of the 'The following notes refer to Revisers on this subject is the basis article III, part II, of the Revised of all future knowledge on Powers, Statutes, regulating " Powers." That and of the highest importance to the article is now incorporated in article profession. Notes of the Original Revisers. 1017 perplexed and darkened. We encounter this darkness at the very threshold of our inquiries, as the di"vision or classification of powers, (which appears in the beginning of every elementary work on the subject,) seems indus- triously framed to confound all intelligence of their meaning and utility. " Nor is it merely because it is mysterious and complex, that a reform in this part of the law is desirable. It is liable to still more serious objections, since, as will appear in the course of our remarks, it affords the ready means of e'-ading the most salutary provisions of our statutes. It avoids all the formalities wisely required in the execution of deeds and wills, frustrates the protection meant to be given to creditors and purchasers, and eludes nearly all the checks by which secrecy and fraud, in the alienation of lands are sought to be prevented. "The present division of powers, is into powers: i. Appendant or appur- tenant. 2. Collateral or in gross. 3. Simply collateral. "These cabalistic terms, we are aware, must sound like an unknown tongue, to unpractised ears; but our objection is not to the strange phrase- ology in which this division is expressed, but to the principle on which it is founded. To understand this, the terms must be explained. Powers appendant and in gross, agree in the circumstance that they are both vested in a person having an estate in the lands over which the power is to be exercised. The distinction between them is this: The power is said to be appendant, when it enables the party to create an estate which must attach, in whole or in part, on his own interest. As where a power is given to a tenant for life, to make leases in possession: every lease he executes must, to some extent, take effect out of his own estate. A power is in gross, when it does not attach on the interest of the party, but enables him to create an estate independent of his own, as a power to a tenant for life, to dispose of the reversion. A power is simply collateral, when it is vested in a stranger having no estate or interest in the land. " It is a striking error in this classification, that it overlooks entirely the nature and objects of the power itself, and regards solely the connexion between the party exercising the power, and the lands which it embraces. Yet it is obvious that the character, and consequently the construction and execution of the power, may be the same, whether it is vested in an owner or a stranger, or is to take effect out of a present or a future estate. Were this merely a logical mistake, it would scarcely deserve attention; but in fact, it has had an important influence on the law of powers, in all its branches. It is from this arbitrary classification, that rules equally arbi- trary have been derived; rules which are first established at common law, and then by an ordinary process, evaded in chancery, through the medium of refinements, reaching circuitously that equity, which ought never to have been disregarded. "We propose, therefore, an entirely new division of powers, not merely as expressed in terms which at once suggest the reason of their adoption, but because it rests on substantial and practical distinctions. In order to classify powers, we look to their extent, and to the objects which they are meant to attain, since it is from the differences that subsist between them in these respects, that the different rules by which they are governed, are and must be derived. The most important circumstance evidently is. 1018 Appendix II. whether the power is to be exercised by the party for his own benefit, or the benefit of others, whether it is an interest or a trust; and it is to this distinction that the regulations we propose have a principal regard. "Some further observations, however, are necessary, to justify our cen- sures of the doctrines that now prevail, in relation to powers, and to evince the necessity of an alteration. They shall be briefly stated. " I. As to the creation of powers: There are at present no limits; but the owner may separate from the title the whole or any portion of his own authority, in the disposition of his lands, and retain it to himself or vest it in another. Thus a man may convey his estate in fee, and by means of a power of revocation, continue in himself the absolute dominion, leaving only a naked title to the alienee. By this device, the lands are placed effectually beyond the reach both of his own creditors, and of the creditors of the grantee. As to the creditors of the grantee, it is plain they may always be defeated by an exercise of the power of revocation. And to his own creditors, they are equally without redress; for as he has no estate or interest in the lands, but a bare authority to dispose of them as he pleases, there is nothing on which their claims can attach. To treat a mere power as actual property, would be a plain violation of legal principles, and accordingly it is not considered as such, either in law or equity. There is indeed a single case in which the creditors may be relieved. If a man, having a general power of disposition, execute it in favor of a purchaser, not for a valuable consideration, and then die, the purchaser is considered in equity a trustee for the creditors; but as against the debtor in his life- time, or if he die leaving the power unexecuted, as against the owners of the land, the creditors are without remedy. ' These distinctions,' Mr. Sugden says, ' may seem rifined, but they are well established.' We confess that ' refined ' does not seem to us the appropriate word. " In England, we have the authority of Mr. Humphreys for saying, that powers are often used to defeat the legal rights of creditors, and that by recent statutes, (3 Geo. IV, c. 123; 5 do. c. 16,) a partial remedy has been applied to the evil. By these statutes, it is provided that a general power, vested in a bankrupt or insolvent, shall pass to his assignees, and be exer- cised by them, for the benefit of the creditors. With us, if English authorities are to be followed, the law remains as we have stated. " That a change of the existing law is here not merely proper, but neces- sary, will be admitted by all; and it is probably needless to offer any remarks in favor of the regulations that we propose. In reason and good sense, there is no distinction between the absolute power of disposition and the absolute ownership; and to make such a distinction, to the injury of creditors, may be very consistent with technical rules, but is a flagrant breach of the plainest maxims of equity and justice. There is a moral obligation on every man, to apply his property to the payment of his debts and the law becomes an engine of fraud, when it permits this obligation to be evaded by a verbal distinction. It is an affront to common sense to say, that a man has no property in that which he may sell when he chooses, and dispose of the proceeds at his pleasure. We apprehend the legislature will have no difficulty in declaring, that so far as creditors and purchasers are concerned, the power of disposition shall be deemed equivalent to the Notes of the Original Revisers. 1019 actual ownership. It may perhaps be doubted, whether a general power to devise, annexed to a previous estate, should be considered an absolute power of disposition; but there are obvious means, by which, with the aid of this power, the tenant for life or years may acquire, even in his lifetime, the entire dominion of the property. "Again; we have deemed it very important to limit the authority of the owners, in the creation of beneficial powers. It appears to us, that in this country, it can hardly happen that such a power of disposition will be sepa- rated from the legal estate, for any purpose that the law ought to favor. This separation is always a source of inconvenience, by perplexing titles and restraining alienation, and it should therefore only be permitted, when it is clear that the utility outweighs the inconvenience. As to trust powers, they cannot, from their nature, be limited; and subject as they are, to the perpetual control of the chancellor, there is little danger of their abuse; but in respect to beneficial powers, we have not been able to discover that any practical good can result from their permission, except in the cases that we have specified. In other cases, the benefit intended by the power, may be better attained by an enlargement of the estate, or by means of a trust. " 2. As to the extinguishment of powers: ■' The rules with respect to the extinction of powers appendant, are, in a great measure, free from objection. Such a power is destroyed by the alienation of the estate, and can never be exercised to the prejudice of any grantee or lessee from the party. The power is however held to be extin- guished, upon technical grounds, even by the execution of a mortgage. Lord Mansfield, indeed, held that the power of a tenant for life to make leases, was not destroyed by a mortgage, and that such a construction of an instrument, intended merely as a security of a debt, would be contrary to the intention of all the parties; (Doug. 392;) but this decision of an illus- trious judge, who never permitted his reason to be fettered by technical rules, has been reversed, and Mr. Sugden says, 'it is now clear, that a con- veyance of the estate, even by way of mortgage, is an extinguishment of the power.' (Sugden on Powers, p. 57.) It is to guard against this incon- venience, that we have declared the effect of a mortgage; and instead of extinguishing the power, have given to the mortgagee the benefit of its exercise, as a part of his security. With respect to powers in gross, the rules in regard to their extinguishment, though technically sound, are, in their practical operation, singularly capricious and unjust. The terms are strong, but they will be fully justified. A power in gross, it will be recol- lected, enables a party to convey an estate, distinct from his own; and we select the case of a tenant for life, having a general power to dispose of the reversion in fee, or a power to devise it to particular persons. If the ten- ant convey the whole estate, including the fee, by bargain and sale, or other conveyance under the statute of uses, the power is not affected, but remains to be executed at his pleasure thereafter; but if he convey by feoffment, with livery of seisin, the power is destroyed. The grounds of this distinc- tion, we are informed, are, that a bargain and sale is what is technically termed an innocent conveyance, and passes only the actual rnterest of the party; whereas a feoffment 'ransacks the whole estate, and passes or extin- 1020 Appendix II. guishes all rights, conditions or powers belonging to the land, as well as the land itself.' (Sugden, p. 64.) To the technical accuracy of this reason- ing, there is probably no objection. Let us now look to its practical effects. A tenant for life, with a general power of disposition, sells the whole estate for a full consideration, and conveys to the purchaser a deed of bargain and sale. A life estate only passes, and the tenant, by virtue of his power, conveys the next day the remainder in fee to a third person. This person acquires a valid title, and the first purchaser, by means of an innocent con- veyance, is effectually defrauded. Or, suppose the power to be a power to devise, and to devise only to particular persons; which is a plain trust. The tenant for life, by means of a feoffment, now ransacks the whole estate and extinguishes the power; and then the rights of the persons entitled to the trust are completely sacrificed. It is true, there are some cases in which powers have been considered as trusts in chancery, and executed as such, in case of their non-execution by the party; but no relief has ever been given, where the power was technically extinguished. "A power simply collateral cannot be varied or extinguished at all, by any act of the party; and if these powers were merely trusts, the rule would be just; but it is obvious that a power simply collateral, may be also beneficial; for a power may be given to a stranger having no estate, to con- vey or charge lands for his own benefit; and yet, if he release this power for a valuable consideration, to the owner of the land, it would seem that the release is void. But although a simply collateral power cannot be barred, yet if it be vested in several, it is destroyed by the death of any one of them previous to its execution; and although accompanied with a trust, its execution by the survivors would be void, in direct contradiction to the rule, which prevails where the trustees have an estate in the lands. "The great error, indeed, which pervades the established doctrine in relation to the distinguishment of powers is, that it disregards entirely the distinctions between beneficial and trust powers, and permits the trust to be extinguished, by the same means by which the interest is conveyed. The new regulations that we propose, are founded on the obvious maxim, that equity will never suffer a trust to be defeated by the death or miscon- duct of a trustee; and the defects of which we complain are remedied, and the law rendered uniform, by applying to trust powers, the rules that have already been declared, in relation to trust estates. "3. As to the execution of powers: The subject is so extensive, that we shall select only a few prominent topics. Where, by the terms of the power, no mode of execution is prescribed, it may be executed by a simple note in writing, without signature (if in the hand writing of the party), and without witnesses, or acknowledgment, or proof, or even, as it seems estab- lished, delivery. Even where it is declared that the power shall be exe- cuted by will, it is not necessary that the will should be executed and attested as a will of real property, or that any of the provisions of the stat- ute, in relation to such wills should be complied with. "On the other hand, if any formalities, however useless, are prescribed, or any conditions, however trifling, annexed to the execution of the power, they must be literally observed, or the execution at law is wholly void. Thus, where it is required that the power shall be executed by a deed, under Notes of the Original Revisers. 1021 the hand and seal of the party, to be executed in the presence of, and to be attested by two or more witnesses, although it is stated in the body of the deed that it was, in fact, executed with all the required formalities, and although it be signed and sealed by the party, and attested by the signa- tures of two witnesses; yet the execution is void, if the attestation clause contain only the words ' sealed and delivered in the presence of,' omitting the word ' signed.' (Sugden on Powers, 236.) So where a power is given to revoke a settlement upon the tender of a gold ring or a pair of gloves, of the price of I2d, the tender and the price must be proved, or the revo- cation will be a nullity. (Hardin v. Warner, Sir W. Jones' Rep. 134.) " In the case referred to, which contained the condition we have men- tioned, the great question appears to have been, whether the price of I2d was confined to the gloves, or extended to the ring also: a ring only having been tendered. (Sugden on Powers, 220.) "The strictness of courts of law, in requiring a literal observance of the most trifling forms, is not more remarkable, than the power assumed by the court of chancery, of dispensing, in some cases, with the most necessary. Indeed, there is nothing more calculated to excite our surprise than the extraordinary jurisdiction which has been exercised by courts of equity, in supplying the defective execution of powers. Thus, if it is expressly declared that the power shall be executed by a will, signed and published in the presence of three witnesses, so as to be sufficient in law to pass real estate; terms showing not merely the intention, but the anxiety of the party, that the solemnities of the statute should be followed, yet they may all be safely disregarded if tho devise is to a wife or a child. An actual owner devises his estate to one or more of his children in exclusion of the others, but the will is attested only by one witness, and the devise is void both in law and equity. The same person makes a similar devise with a similar defect in execution, by virtue of a power expressly enjoining an execution by will according to the statute, and the devise, though void at law, yet in spite of the intentions of the party granting the power, and of the legisla- ture, as expressed in the statute of wills, by theyfa^ of the chancellor is rendered valid. (Sugden on Powers, 353, 361.) We confess this has appeared to us a stretch of power that cannot be justified, and which considerations of a supposed equity are hardly sufficient to palliate. If the court of chan- cery may do this, we may well inquire what are the limits of its authority? What may it not do ? " The present state of the law in relation to the execution of powers, leads us to attach a peculiar importance to the regulations that we have proposed on this subject. They rest on the principle, that the alienation of lands by means of a power should be governed by the same rules as their alienation by the legal owner; and that where the general solemnities of law are observed, other formalities, though enjoined by the party, may be considered as immaterial, and be safely disregarded. These rules will not only render the system of alienation consistent, but as it seems to us, will relieve the execution of powers from any serious embarrassment, and by avoiding the extreme of rigor to which courts of law have been carried, remove any necessity or pretext for the interference of equity. 1022 Appendix II. "In conclusion we remark, that on the subject of powers, the legislatur* may act with entire safety. They will disturb nothing. Powers are almost unknown in this state, and their use to the extent in which they are no^ authorized by law, is hardly consistent with our habits of society and gen- eral modes of alienation. In England, it is true, powers are found in almost every conveyance or settlement, and they are thereof admirable use in perpetuating estates in families, and securing the possessions and power of a landed aristocracy. It is not surprising, therefore, that powers should be favored in England; for the continuance of the landed property of the kingdom, in the hands of its aristocracy, is the basis upon which the mon- archy itself may be said to rest; but with us, it should never be forgotten, that it is the partibility, the frequent division, and unchecked alienation of property, that are essential to the health and vigor of our republican institutions. "It is worthy of notice, that this view of the subject seems partially to have occurred to Mr. Sugden himself, the author of the very elaborate treatise on powers; to which we have frequently referred. At the close of a late publication occasioned by Mr. Humphreys* work on real property, Mr. Sug- den states that a few years since he received a letter from an American gentleman informing him that an edition of the treatise on powers would probably soon be required in this country, and then adds the significant remark, ' I regretted at the time that a new state should embarrass itself with pur forms of conveyancing, springing out of the doctrine of uses.' (Sugden's letter to T. Humphreys, p. 56.) ' " [§ 981 99 R- S.] It is believed that these are the only sections of which the object is not sufficiently explained in our general observations. They are intended to prevent the interference of equity , in correcting what are called illusory appointments— a jurisdiction very questionable in itself , and of which the limits are still uncertain. When a fund is directed to be distrib- uted amongst several persons, in such sums or proportions as the trustee of the power may think proper, it has been decided that each person is enti- tled to a share, but at law the power is held to be well executed, if any share, however trifling, is allotted to each. A different rule, however, was established in equity. It was there decided, that each person was entitled to a substantial share; and that a distribution allotting a nominal sum to one or more of the objects of the trust, was illusory and void. ' In the meanwhile ' (we copy the observations of Mr. Humphreys), ' the question soon arose, what was a substantial share? It was, however, more readily raised than answered, and finding the principle untenable, or at least the rule impracticable, but deeming it too late to abandon an established doc- trine, courts of equity have re-measured their steps; and having decided on one occasion that a igoth share was unsubstantial, the actual rule appears to be that any gift short of that proportion (in one case a I22d part), is not illusory.' (Humphreys on Real Property, p. 96.) The propriety of this equitable interference, was strongly questioned on one occasion by Sir Wil- liam Grant, then master of the rolls, who remarked in strong terms, that he found it impossible to understand how the question whether a power was ' Refers to i R. S. 734, §§ 98, 99, supra, p. 523. Notes of the Original Revisers. 1023 well or ill executed could receive different determinations in different courts. (Butcher v. Butcher, 9 Ves. jun. 382.) "It is believed by the Revisers that all the difficulties on this subject are avoided, and the intent of the party creating the power fulfilled, by making the discretion of the trt.stee extend to a selection of the objects, as well as to the amount of the shares; in other words, by giving him directly the power, which indirectly he may now exercise." "Article IV. — 0/ alienation by cieed.^^ 1 ' Original note to § 140. " By the common law as now modified and under- stood in this state, the doctrine of implied covenants stand as follows: " I. A conveyance in fee does not, of itself, imply a covenant of title (2 Caines' Rep. 188), but the ■worA give, in such a conveyance, implies a war- ranty, for the life of the grantor. (2 Caines, iqs; 7 Johns. Rep., 258.) " 2. The words grant and infeoff import a warrant, in an estate for years, but not in an estate in fee. (2 Caines' Rep., 188.) "3. An express covenant in the deed takes away all implied covenants. (11 Johns. Rep., 122.) " The general practice in this state having been to take special covenants where the grantor intended to make himself liable for the validity of the title, it is apprehended that the doctrine of implied covenants frequently operates to the injury of grantors. Especially when it is considered that the distinctions taken in the books upon the effect of particular words, are so techninal and refined as to be wholly unintelligible to any except pro- fessional men. Indeed, the ablest lawyers have admitted, that they were not able to assign a very solid reason for the distinction between the force and effect of the words ''give' and ^ grant,' but as they found it established, they have felt themselves bound to carry it into effect. (Kent, Ch. J., in z Caines, 195.) It is obvious that rules of this nature must be generally unknown to the great mass of our community. It is no answer to say that prudent persons about to execute a conveyance, will take the advice of counsel; for in this respect many of our most intelligent citizens are quite imprudent. The fact is notorious, that a great part of the deeds executed in this state, are prepared by persons who have no knowledge of the law. And there is every reason to believe that this practice will always continue to a very considerable extent. "One of two things ought therefore to be done by the legislature — implied covenants should either be entirely abolished; or the cases in which they shall exist, and their consequences, should be enacted for general information. In the preceding section the Revisers have adopted the latter course, and the section adopts the views of those who think that every sale for a valuable consideration, ought to subject the grantor to a warranty of the title. This is the rule of the civil law. though contrary to the policy of the common law. 'The Revisers' notes to this article 'The sections reported by the Re- of part II of the Revised Statutes are visers with this note were only partly still important. The article itself is adopted by the Legislature in i R. S. now transferred to article VII of The 738, § 140, supra, p. 679. Real Prop. Law, supra, pp. 643-744. 1024 Appendix II. " The measure of damages above prescribed, is conformable to the law o! this state, as settled in respect to express covenants of quiet enjoyment and general warranty. (See 4 Johns. Rep., i; 3 Caines' Rep., iii; 5 Johns. Rep., 49; 7 Johns. Rep., 173; 9 Johns. Rep., 324; 13 Johns. Rep., 50.) This rule of damages makes no provision for improvements made by the grantee, and in that respect is liable to objection." ' [§ 139, R. S.] Original note. "The opinion has been advanced by our courts, that a mortgage when given to secure the payment of money, imports a covenant to pay the money, whether a special covenant be inserted, or a bond or other security be given, or not. This is supposed to be contrary to received and very natural opinions. It is therefore proposed to abrogate the rule." ' [§ 140 R. S. inserted by the legislature in conformity to one of the sug- gestions contained in the preceding note to § 140.] ^[§ 141 R. S.] Original note. "By lineal warranty is meant, the obliga- tion imposed upon an heir by the warranty of his ancestor, to give to the warrantee upon his eviction, lands of equal value to those he has lost, out of the real assets descended to such heir, if he have such assets. Collateral warranty is where the land warranted could not have descended from the warranting ancestor, and yet the warranty debarred the heir from claiming the land and imposed on him the same obligation as a lineal war- ranty, 4th Cruise, 436, 437. Collateral warranties are abolished by § 26, I R. L., 525. As to lineal warranties, our statute rendering heirs and devisees liable for the obligations of their ancestor, is a better provision. And the subsequent sections, 181 and 182, provide for their operation as a bar to claims by heirs." * [§ 143, 144, 145 R. S.] Original note. "The three last sections agree substantially with a section from the laws of Virginia, [v. i, p. 368, § 20.] The section referred to was proposed by the Revisers of 1783, as a substi- tute for several English statutory provisions, which have been transcribed into our statute books, viz.: § i, 2, and 7, of the act to prevent fraudu- lent alienations (i R. L., 181, 183), and § 26, of the act for the amend- ment of the law (i R. L., 525.) The effect of the last section now pro- posed, is to abrogate the statutory forfeiture given by § i of the act I R. L., 183, and the common law forfeitures consequent upon alienations, when made by feoffment or fine. Those forfeitures were founded on strict feudal principles, and are conceived to be not only inapplicable to our present state of society, but absolutely unjust. A feoffment at common law, of the whole estate, made by a tenant for life, was held to operate as a disseisin of the persons entitled in expectancy, and had the strange effect of passing an actual fee. Hence, in order to protect the interests of the remainderman and reversioner, it became necessary to give them the imme- diate right of entry, by declaring that the feoffment should work a forfeit- ure, since otherwise, by the continued possession of the feoffee, or his death 1 Refers to i R. S. 738, § 139, supra, ' Refers to i R. S. 739, § 141, supra, p. 675. p. 681. 'Judge Edmonds' note to i R. S. * Refers to i R. S. 739, §§ 143, 144, 738, § 140. 145, supra, pp. 667, 673. Notes of the Original Revisers. 1025 ■whilst in possession, the expectant estate might have been entirely defeated or barred. No such necessity, however, will exist, when the conveyance by feoffment shall be abolished, and the only effect of a grant in fee, by the tenant for life, shall be to pass his own estate. By such a conveyance, the rights of the reversioner and remainderman will not be at all affected, and the only consequence of declaring that it shall work a forfeiture, will be to enable the tenant for life to defraud an innocent purchaser." ' [§ 146 R. S.] Original note. " i R. L., 525, § 25, intent more explicitly declared." ' [§ 147 ^- S.] Original note. " Conformable to § 8, i R. I,., 173, with the exception of requiring one year's possession.'' '' [§ 148 R. S., except that the clause after "representatives" was added by the legislature.] Original note. " It is proposed to abolish the law of main- tenance and to qualify that of champerty, as declared in the statute i R. L., 172, so far as to permit mortgages of lands held adversely. The great objection to these laws has been, that a destitute claimant is often prevented by their operation from enforcing his rights; whereas if he were permitted to avail himself of the property, for the purpose of procuring professional assistance and defraying the unavoidable and often heavy expenses of a liti- gation, he would be placed more nearly on an equal footing with his antago- nist, who happens to be in possession. Desirous to obviate this objection, so far as it is entitled to weight, but at the same time unwilling to propose the certain abolition of the present law, the Revisers have adopted a middle course, by allowing a claimant to mortgage lands held adversely. The pro- hibitions of the champerty act, so far as they are consistent with this modification, will be inserted in Part IV." " Title III. — Of estates in dower." ^ ' [§ I. Same as enacted.] Original note. "Conformable to i R. L., 56, § 1. An anomalous distinction has heretofore obtained between dower and curtesy. It has long since been established, that trust estates were subject to curtesy (i Cruise, 486;) yet it is equally well settled that a. widow is not dowable of such an estate, (i Cruise, 488.) ' The first time this point appears to have been determined (says Cruise), was in 12 Car. II.; and though the doctrine has been followed by subsequent chancellors, yet they have always expressed their regret at being bound by such a precedent.' This distinction has been expressly abolished in some of our sister states, and though not noticed in the above section, is in effect abrogated by the provisions of the second Article of the preceding Title, abolishing trusts, except when created for active purposes." ' Refers to I R. S. 739, § 146, JM/ra, afterwards title III of chapter i, p- 674. part II, R. S. " Of Estates in Dower." ' Refers to i R. S. 739, § 147, suyra. Title III, chapter i, R. S. on Dower p. 715- is now embodied in article V, The ' Refers to i R. S. 739, § 148, supra, Real Prop. Law, supra, pp. 558-604. p. 715- 'Refers to i R. S. 740, § i, supra, * The notes of the Revisers to title p. 558. Ill, part II, R. S. refer to their draft, 65 1026 Appendix II. '[§2. Same as enacted.] Original note. " New, but conformable to the decision of the supreme court, in i Cowen, p. 8g, which was confirmed by the court for the correction of errors, in 5 Cowen, 7i3-" '' [§ 3. Same as enacted.] Original note. " First clause declaratory of the existing law, I Inst., 31, b. i. Cruise, Title 6, ch. 3, § 14; latter clause new.'' *[§4. Same as enacted.] Originalnote. " By the existing law, a widow is entitled to her dower in lands mortgaged before marriage (15 J. Rep., 319), except as against the mortgagee.'' * [§ 5. Same as enacted.] Original note. " Conformable to Stow and Tifft, 15 Johns. R., 458, in which the court were divided; and 5 Cowen, 316." '[§6. Same as enacted.] Original note. " This is now the rule in chan- cery, when a sale is made under a decree, but not when a sale is made under a power of sale, though it is apparent that the equity is the same." ' [§ 7. Same as enacted, except that the words, •'■unless his estate therein shall become absolute," were altered by the legislature to " unless he acquire an absolute estate therein."^ Originalnote. " Conformable to the principles of the cases in 4 J. Rep. 41; 11 lb. 534; 15 do. 319." "^ *' § ^* [§ 8 R. S. substituted by the legislature in lieu of the following, but see Title /, § 42, 48, chap. 8 of Part II.\ If a wife commit adultery, and the fact be established against her, either by a decree dissolving the marriage con- tract, or by proof in any action brought by her, to recover her dower, she shall be barred forever of all claim and right to dower of her husband's lands; unless it be shown that, after knowledge of such adultery, her hus- band was reconciled to her, and that he permitted her thereafter to dwell with him, in which case she shall be restored to her right of dower." Orig- inal note. " I R. L. 58, § 7, and 2 R. L. 196, § 8. Language of the first varied so as to conform to the original intent of its makers." [§ 9, 10, II. Same as enacted.] Originalnote. " The three preceding sec- tions are intended as a substitute for the whole of section 8 of the act i R. L. 58, except the last clause, giving a compensation in case of eviction. That section is a transcript of the statute, 27 Hen. VIII, ch. 10, § 6, and has always received a very strict construction. Conceiving that it would be attended with beneficial effects, to facilitate the barring of claims for dower, the Revisers have in the above sections extended the principle of the exist- ing statute, so as to embrace any provision, whatever may be its nature, which is intended as a jointure. In this they have in truth but followed the existing law, for though jointures under the statute must in all points strictly conform to the provisions of the act, yet the courts of equity have introduced a new species of jointures which are equally effectual. The existing statute is defective in not pointing out the mode in which the 'Refers to i R. S. 740, § 2. Cf. 'Refers to l R. S. 741, ^t, supra, supra, p. n6. p. 572. « Refers to i R. S. 740, § 3, supra, « Refers to i R. S. 741, § 7, supra, P- 568. ■ p. 574. " Refers to l R. S. 740, § 4. supra, 1 Refers to i R. S. 741, § 8, supra, V- 569- P- 575- ^Refers to i R. S. 740, § 5, supra, « Refers to i R. S. 741, §g 9, so, 11, p. 570. supra, pp. 579, 582. Notes of the Original Revisers. 1027 assent of the intended wife is to be manifested, and in providing no guards for the protection of infants, both which omissions are supplied by the above sections." ' [Same as § 14 R. S. except that it was so altered by the legislature as to apply to last two sections.] Original note. "New. Some mode of evincing her election should be prescribed, and some time, within which it shall be made." - [§ 15 R. S.] Original note. "This is an alteration of the existing law, the statute which bars the wife guilty of adultery from dower, not extend- ing to jointure. (Cruise, title 7, ch. 3, § 4.) It is conceived that the law should be the same in both cases." *[§ 17 R. S.] "§ 17. A widow may tarry in the chief house of her hus- band, forty days after his death, unless her dower be sooner assigned her , with- out being liable to any rent for the same, and in the mean time she shall have her reasonable sustenance out of the estate of her husband." Original note. " I R. L. 56, § i. Italics new and conformable to 7 Johns. Rep. 247, and to the republication of Magna Charter, i Hen. III." *[§ 18 R. S.] Original note, "i R. L. p. 60, § I, allows a widow her life- time to prosecute for her dower. By the revised statute of limitations, a woman must demand every other estate in lands to which she may be entitled, within twenty years, subject to the exceptions contained in the preceding section. If it be an object in any case to quiet titles, to protect honest purchasers, and to excite to a vigilance equally beneficial to the claimant and to others, it is conceived that this case requires the necessary provisions to attain it, as much, if not more, than any other." '•[§ 19, 20, 21 R. S.] Original note to § 20. " § 2, i R. L. 57. The rule of damages given more explicitly according to the authorities; see Co. Litt. 32, 33; 2 J. Rep. 485. As the alienee of the heir may plead tout temp prist^ 4nd thereby throw upon the plaintiff the proof of a demand, it seems better to declare at once that the damages shall commence from such demand. This is also perfectly equitable, and becomes necessary by extending the action of ejectment to the recovery of dower, as in that action special plead- ing is not allowed, and without pleading it the defendant would be deprived of the benefit of such a defense, according to the present rules of plead- ing. The provision limiting the recovery to six years' rents and profits, is in analogy to the universal rule in all other cases. This rule is founded on great principles of public policy, for the protection of the actual cultivator of the soil, and is as applicable to the recovery of a dower claim, as to a recovery of any other estate in lands. The 20th section is conformable to existing law in all other cases, and has been adopted by the legislature in the Title concerning ejectment." 1 I Refers to R. S. 742, § 14, supra, * Refers to i R. S. 742, § 18, now p. 590. § 1596, Code Civ. Proc. « Refers- to i R. S. 742, § is, supra, 'Refers to t R. S. 742, §§ ig, 20, p. 593. and I R- S. 743, § 21, now §§ 1600, ' Refers to I R. S. 742, § 17, as 1601, 1603, Code Civ. Proc. drafted but not adopted. Supra, p. 599. 1028 Appendix II. ' [§ 22 R. S.] Original note. " As the widow is limited by a previous sec- tion, in her recovery of damages from the time of demand of the alienee, it seems but just to permit her to recover of the heir." = [§23R. S.] Original note. "Co. Lit. 35, a. If the heir assign to the widow dower in satisfaction of her claim upon him, and upon the lands of the feoffees of her husband, it may be pleaded in bar by the heir; but the better opinion seems to be that it cannot be pleaded by the feoffee. This section is proposed to remedy this defect." '[§ 24 R. S.] Original note. " The first part of the 5th section, and part of the 6th section of the same, consolidated and extended to the new sum- mary applications, as they are within the same principle." [25 R. S.] i R. L. 368, § 17. " Title IV. — Of estates for years and at will, and the rights and duties of land' lords and tenants." * '[§1. Same as enacted.] Original note. "4th section of act of 1820, p. 178. Proviso omitted; it having been adopted as a general provision in ch. 7, part 2." ' § 5 and 6 as reported; not enacted / § 5 and 6 R. S. substituted. Original note. " The law on this subject, is somewhat peculiar and anoma- lous. In 7 J. Rep., 205, and 18 do. 94, the supreme court held that posses- sion being prima facie evidence of title, when it was connected with an equitable title, the party had an interest in lands within the statute of frauds; and that such interest was subject to sale under execution. But in i John. Ch. Rep., 52, the chancellor held that the vendor did not become seised to the use of the vendee, until the whole consideration money be paid; and that where a part only is paid, the vendee has a mere equity which cannot be reached by execution. This was sanctioned by the court of errors, in 17 J. Rep., 351. But notwithstanding, since these cases, the courts allow the interest of the vendee to be sold, and such sale to be conclusive upon him. In this state of the law, it is obvious that the interest of the vendee may be sacrificed without any or with very little benefit to the creditor, whose title is so precarious. At the same time great opportunity is afforded forfraud- ulent investments in a species of property which thus defies all legal or equitable jurisdiction. It is conceived the interest of the community will be promoted, by adopting the principle contained in the two preceding sections." ' § 9 flj' reported; varied in SjgJ?.S. Original note. " Proviso to ist section of act of 1820, p. 177, except the latter part as to notice, which is rendered necessary by the construction given by the supreme court in 4th Cowen,35o, that although the tenancy is determined by three months' notice to quit, yet a further notice of six months is necessary." 'Code Civ. Pro. §§ 1600, 1601, 1603. 'Refers to i R. S. 744, § i, supra, 'Id. supra. p. 641. 'Id. supra. "Refers to i R. S. 745, §§ 5, 6, now *The notes of the Revisers on this in Code, title of the Revised Statutes are still ' Refers to i R. S. 745, § 9, supra, important. The title itself is now p. 631. embodied in article VI, The Real Prop. Law, pp. 605-642, supra. Notes of the Original Revisers. 1029 '[§10, II. Same as enacted, except the substitution in § II, of "one month' s notice " for three, as reported.] Original note. "21st section of same act, p. 446, and 8th section of act of 1820, p. 179, consolidated: the provis- ion respecting bail omitted, as it would be required in the action. «[§I5, 16R. S.] Original note to § 12 to 15. " § 12, 1 R. L., 437, provides that no goods, levied upon under an execution, shall be removed from demised premises, until the rent be paid, and authorizes the collection of the amount so paid, by virtue of the execution. It has given rise to much litigation, and is very liable to abuse. In practice, a claim to rent is a common resort to protect property from an execution. Presumptive evidence of such a, claim and its amount, should be required as well to protect the creditor having an exe- cution, as the defendant. For the latter is thus exposed to have his property sold upon a mere claim for rent, without any opportunity to contest it. A notice from the landlord is now required, to prevent a removal of the goods; II J. Rep. 185. If that notice is to amount to anything, it should be verified. It is not perceived why the goods may not be removed and sold, to satisfy the landlord's claim, instead of the circuitous mode of paying the claim first and selling the goods afterwards. By allowing a sale, the claim is satisfied; or the tenant is enabled to contest it. Thus the rights of all parties seem to be guarded, and collusion between a landlord and his tenant to defraud a creditor as well as collusion between a plaintiff and landlord to oppress a tenant, are prevented. The preceding four sections are proposed to attain these objects.'' * [§ 17 R. S.] Original note. "This is just, to prevent an extortionate claim of the landlord." * [§ 18 R. S.] Original note. " Conformable in part to the statute of 4 Geo. II, ch. 28, § 5, which has never been re-enacted in this state; and in part to the decisions of the supreme court, in 10 Johns. Rep., 91, and 2 Cowen, 656." ^ Originalnote to § 21. [§ 19 R. S.] " i R. L. 439, § 18, abbreviated and made more comprehensive." ' Original note to § 22, 23, 24. " The three last sections are new in form, but intended to include all the various provisions of the ' act to enable grantees of reversions to take advantage of the conditions to be performed by les- sees.' 1st vol. R. L., p. 363." " Title V. — Miscellaneous provisions of a general nature.'"' *[§ 3 R. S., as originally enacted. This section was afterwards amended on the suggestion of the Revisers, by act of 1830, chap. 320, § 11, by insert- ' Refers to i R. S. 745, §§ 10, 11, 'Refers to l R. S. 747, §21, supra, supra, pp. 635, 637. p. 611. 'Refers to i R. S. 746, §§ 12, 13, 14, « Refers to i R. S. 747, §§ 22, 23, 24, 15. Not re-enacted in The Real Prop, supra, pp. 613, 615. Law. ' Title V, chapter I, part II, R. S. s Refers to i R. S. 746, § 17, not re- is now embodied in article VII, The enacted in The Real Prop. Law. Real Prop. Law, supra, pp. 643-747. * Refers tc i R. S. 747, § 18, not re- 8 Refers to I R. S. 748, § 3, not re- enacted in The Real Prop. Law. enacted in The Real Prop. Law. 1030 Appendix II. ing the words " or of the register or assistant register of the court of chancery, where the jurisdiction shall belong to that court." Original note to ^ as first proposed and enacted. " Some provision seems abso- lutely necessary, to protect persons purchasing from heirs. This section will be useful to purchasers, and is so guarded as to afford a reasonable time to the devisee to become acquainted with his rights." Original note to amendment of 1830. " See post ^ 12, in which provision is made for proving foreign wills, by commission from the court of chancery.'' '[§4R. S.] Original note. " Where the testator or intestate has given a bond or other personal security for a mortgage debt, and probably in all cases where a mortgage is given to secure the payment of money, the personal estate, by the existing law, is the primary fund for the payment of the debt, and the heir or devisee may throw the charge upon the personal representatives. (See all the cases collected by Chancellor Kent, in Cumberland v. Codring- ton, 3 Johns. Ch. R., 22g.) This rule of law is unknown to the generality of our citizens. The received opinion is, that the land is first liable for the debt; and it can hardly be doubted that the intentions of testators have frequently been defeated by the operation of the rule. It is therefore sub- mitted, whether it ought not to be abrogated." ' Original note to g i, 2, 3, R. S. " By the common law the word ' heirs ' is indispensable in a deed, in order to convey an estate in fee. Even if land be given to a man forever, or to a man and his assigns forever, he takes but an estate for life, (2 Black. Com. 107.) ' This very great nicety about the insertion of the word ' heirs,' (says Sir Wm. Blackstone,) in order to vest a fee, is plainly a relic of the feudal strictness.' It may be added, that in most cases it defeats the intention of the parties, and in all cases is repug- nant to the common understanding of mankind. " When a person uninstructed in legal refinements disposes of property, if he intends to give but a limited or partial interest, he will always state it; the omission of such a qualification, is, of itself, the highest proof that he intended to give the whole. This is also the rule of law in reference to transfers of personal property; and so far as the courts could venture to go, with the common law rule staring them in the face, they have extended it to devises of real estate. "Perceiving that to require the word 'heirs,' as essential to pass a fee, in wills would often defeat the intentions of testators, the courts at an early day, established the principle that a fee would pass in a will, either by words of inheritance or by words tantamount; but as there has been a con- stant struggle to give effect to this principle, without directly violating the feudal rule, which still governs in deeds, numerous distinctions have been introduced, which have given rise to much litigation and uncertainty. " The rule in § 2 will remove this anomalous distinction, and place deeds and wills on the same footing. 1 Refers to i R. S. 749, § 4, supra, by the Legislature as proposed by the p. 677. Revisers, but the essence of the note 'Refers to i R. S. 748, §§ i, 2, 3, is applicable to i R. S. 748, §§ i, 2, supra, p. 644. (§ 3 was not adopted supra, p. 644.) Notes of the Original Revisers. 1031 " In recommending this alteration of the existing law, the Revisers have the sanction of the highest authorities. Chief Justice Reeve, of Connecti- cut, (Essay on terms, 'heirs,' &c. in his work on domestic relations,) Mr. Brougham (Speech in British House of Commons, on the state of the Law, p. Ill,) and Mr. Humphreys (Observations on the Laws of Real Property, p. 236,) are among those who have denounced the existing rule, or recom- mended its alteration. "In the state of Virginia, and in several other states, provisions similar to the above, have been enacted by the legislature. "The object of § 3 is to make the intention of the parties, in all cases and in all courts, the paramount and governing rule of interpretation, thus extending to conveyances, the principle which now prevails universally, in relation to personal contracts, and which to a great extent, is adopted in equity, in the construction of wills, appointments under powers, and mar- riage articles. Were we not reconciled to it by a long habit of acquiescence, nothing would probably appear to our minds more strange and unreason- able, than that different and conflicting rules of interpretation should pre- vail in different courts, acting under the same system of laws, and deriving their authority from the same government; yet it is literally true, that the very same words which are understood in one sense, if contained in a deed, of which the construction properly belongs to a court of law, are declared to have a meaning directly opposite, if contained in an instrument, which it is the province of equity to interpret or execute. This can not be right. If with the view of attaining certainty in the construction of written instru- ments, it is just that the intent of parties should be made to yield to strict rules of construction, a discretionary power of relaxing those rules should never be given; for by admitting such a discretion, the whole policy of the law is defeated: on the other hand, if it is unreasonable and unjust, that the intent should be overruled and defeated by the application of technical rules, why should not a court of law, as well as of equity, dispense with their observance ? Is their observance in such a case, less unreasonable and unjust in the one court, than in the other? Or is it that relief is to be denied in the one, merely that the party, at great expense, may be com- pelled to seek it in the other? For, in many cases, this is the necessary result of the present system. " That this discrepancy in the rules of interpretation is a serious defect in our jurisprudence, has been admitted by many eminent writers, and there are obviously only two modes by which it can be remedied. We must either extend to every instrument concerning the title to lands, the same strict rules of construction, that now obtain in regard to conveyances, and enforce their observance in every court; or we must declare that in convey- ances also, the construction shall follow the intent. By adopting the first mode, we shall undoubtedly prevent some litigation, and attain a greater certainty in the construction of written instruments; but to attain that cer- tainty, we shall sacrifice the intention of parties, check alienation, defeat estates, favor injustice, and give impunity to fraud. 1032 Appendix II. "CHAPTER II."' " OF TITLE TO REAL PROPERTY BY DESCENT." [§ I. Same as enacted, except that sub. 3 was inserted by the legislature.] Original note. "The term 'real estate,' is defined in the 21st section of this Chapter; and the above section, as thus interpreted, effects an import- ant, and, it is believed, salutary change in the present law. Descents, under the present statute, are confined to cases where the ancestor died seised of the estate: so that where there is an adverse possession at the time of his death, or where the right of the ancestor is contingent or executory, the inheritance, instead of descending, according to the principles of the statute, to all the heirs equally, would pass, by the rules of the common law, to the eldest male heir. Thus, if the ancestor, although his title was cer- tain, had lost the possession by force or fraud, or was entitled to the fee under a contingent remainder or executory devise, and died before the determination of the preceding estate, his whole property might pass to his eldest son, or the eldest male descendant of such son, in exclusion of all his other children. It is difficult to believe that such was the intent of the legislature by whom the statute was originally passed; but such is the con- struction which the courts are compelled to adopt, in consequence of the use of the technical term, 'seised,' The object of the Revisers, is to substi- tute, throughout, the principles of the statute, for the rules of the common law; so that wherever, at common law, the eldest descendant or brother would take, all the children or brothers, &c. shall take, under the provisions of this chapter: and they are satisfied, that by making this alteration, the law will be conformed to the general sense of the community. The Revisers feel it their duty to state, that the change now proposed, (as well as some other valuable improvements,) was suggested to them by the late Mr. Emmet, in a written communication to the Revisers." '[§2,3,4. Same as enacted.] Original note to ^ ^. " Residue of the 2d rule of the existing statute. It seems unnecessary to provide specially for the case of a descent to grand children and children of grand children, in unequal degrees, as is done in the existing statute. The general terms here adopted, are sufficient to reach all the cases that can occur, and to the remotest degree." "[§ 5. Same as enacted, and published in the first edition, except that in addition to the words in the statute, the following words were also con- tained in the reported §, " in which case it shall descend as if such intestate had survived his father.'' But by amendatory act of 1830, chap. 320, § 13, a new section was substituted on recommendation of Revisers.] Original note to § as first proposed. " If in addition to those incorporated in the text, any fur- ther alteration in the law of descents be admissible, It would seem that ' The original notes to chapter II, re-enacted in article IX of The Real part II, R. S., are still very explana- Prop. Law, pp. 835-894, supra. tory of the changes wrought by the ^Refers to i R. S. 751, §§ 2, 3, 4, statute of New York in the old com- pp. 854, 856, supra. mon law of descents. The sections 'Refers to i R. S. 751, § 5, supra, in chapter II, part II, R, S., are now p. 858. Notes of the Original Revisers. 1033 none could be more just than to allow the mother of the intestate to take the estate for her life, where there is no father. Under the present statute there is no case in which the mother would be entitled to take, an omission which is supplied in the statutes of most of the other states in the union. Should the suggestion of this note be approved, the following words may be added to the above section: ' If the intestate leave no father, the inheritance shall descend to his mother during her life, and after her death, to the persons who would have been entitled as heirs, at the time of the death of the intestate, had there been no mother.' If this clause should be adopted, some modification of the other sections will be necessary." Original note to new section proposed in 1830. " Under the sixth section of this chapter, which was introduced during its passage through the legislature, an inheritance on the part of the father may descend to the mother in fee, in exclusion of the collateral relatives of the father, and under the twelfth section, an inheritance on the part of the mother in default of collateral relatives on her side, would go to the collateral relatives of the father, although he himself might then be living. It seems unreasonable that the mother should possess greater privileges than the father, and still more so, that a brother or sister of the father, should be entitled to take in prefer- ence to him. The amendment proposed, removes these incongruities, and renders the provisions of the statute reasonable and consistent." ' [§ 8, g R. S.] Original note. " It has been decided by the supreme court, (6 Johns. Rep. 322,) and the words of the statute seem plainly to demand that construction, that nephews or nieces, where there are no brothers or sisters, do not take equally, but only the shares of their respective parents, thus changing the rule that obtains as to lineal descendants, who, when of the same degree of consanguinity, always take in their own right in equal portions, and not by representation. It seems desirable that the statute should be rendered uniform in its provisions, and no reason is perceived why the rule applicable to lineal descendants, should not be extended to collaterals. This is one of the alterations effected by the three last sections; another is, that they extend the right to take by descent, to the issue of nephews and nieces. As the law now is, a grand nephew could not take at all under the statute." ''[8 II R. S. except that after the word "descend" the words "to the mother in fee, if tliere be no mother then," were stricken out by the legis- lature, they having, by § 6, R. S. made provision for the mother?^ Origi- nal note. "The present statute does not regulate descents beyond the children of brothers and sisters, and leaves the common law to govern in all other cases, so that the eldest uncle and his issue take in preference to all others of equal degree. The two last sections are proposed to carry into effect the great principles of the statute throughout the nearest collateral branches, and to secure an equal distribution of the property to kindred of the same degree, and to them and their issue when of unequal degrees. The Revisers, however, doubt the expediency of carrying the rule of equal partibility beyond the limits now proposed, as the division of aji estate 'Refers to I R. S. 752, §§ 8, 9, 'Refers to i R. S. 753, § n, supra, supra, p. 866. P- 869. 1034 Appendix II. amongst more remote relatives, on account of the multitude of shares, would render each portion so small that it would cease to be an object of any consideration. Those interested would have no adequate motive to assert their rights, and the whole estate would probably be intercepted by fraud from the heirs of the intestate. If the suggestion before made as to the mother, should be adopted, it would seem to be still more proper to provide for her, where there are no relatives of the father. In this case, therefore, the Revisers propose, by the words in italics, to give her the whole estate." ' [§ 15, l6 R. S.] Original note to § 12. " This section adopts the principle of the present law in reference to the kindred of the half blood, and extends that principle to the new cases introduced." ' [§ 18 R. S.] Original note. § 5 of the present act would seem to be confined to children of the intestate; but it was taken from the English act, 10 & II Will. Ill, ch. 16, which declared the right of posthumous children under a marriage settlement, and ought to receive a construction equally liberal. The terms of this section are conformable to a suggestion made by the Revisers in Chapter VI, of the second part, in regard to the distribution of the estates of intestates, which has been adopted by the legislature." * [§ 28 R. S. as first enacted; but by sub. 25 of § 15 of the act of the loth Dec. 1828, "Concerning the Revised Statutes," reported by the Revisers, the words, "in the life time of" originally reported and enacted, were directed to be omitted, and the word "before" substituted, and the § was so published.] Original note to § 28: " To prevent doubt and avoid repetition," * [§ 19 R. S.] Original note . " To avoid the repetition of the term lawful." ' [§ 20 R. S.] " The estate of a husband as tenant by the curtesy, or of a widow as tenant in dower, shall not be affected by any of the provisions of this chapter; nor shall the same affect any limitation of any estate by deed or will." Original note. "4th section of present act. The saving clause in italics is new, but seems proper to be added. The general terms of the present law direct, that on the failure of descendants, the inheritance shall go to the collateral relatives; but it frequently happens, that where there are no issue of the intestate to take at his death, other persons are entitled under an executory devise, or other limitation. It seems full as necessary to save their rights, as the rights of tenants by the curtesy or in dower." ' [§ 21 R. S.] Original note. " So much of the latter part of the 4th sec- tion of the act concerning uses, i R. L., 74, as relates to this subject." ' [§ 22 R. S.] Original note. "This section is intended to change a very harsh rule of the existing law, by which a person not an alien himself, may sometimes be debarred from inheriting." ' Refers to I R. S. 753, §§ 15, 16, ' Refers to i R. S. 754, § 20, supra, supra, pp. 876, 881. p. 836. ^ Refers to i R. S. 754, § 18, supra, ^ Refers to i R. S. 754, § 21, supra, p. 883. p. 836. 'Judge Edmonds' note to i R. S. 'Refers to i R. S. 754, § 22, supra, 755. § 28, supra, p. 836. p. 886. * Refers to i R. S. 754, § 19, supra, p. 872. Notes of the Original Revisers. 1035 "CHAPTER III."' " OF THE PROOF AND RECORDING OF CONVEYANCES OF REAL ESTATE, AND THE 9ANCELUNG OF MORTGAGES." Extract from original note to Chapter. "The following chapter contains a revision of the several statutes, gen- eral and special, now in force relative to the acknowledgment, proof, and recording of deeds and mortgages, with such modifications as seemed nec- essary to give certainty and uniformity to the system." ' [§ I. Same as enacted.] Original note . "Founded on I R. L., 362, 372. Laws of 1819, p. 269; 1821, p. 127; 1822, p. 261, 284; 1823, p. 412. ■"The term ^conveyance,' is defined in § 32; and as there defined, includes mortgages; the effect of which will be, to place deeds and mortgages on the same footing. " The rules of priority as it respects deeds and mortgages, under the present statutes, are different, as has been decided by the supreme court, (19 Johns., 282,) and as the terms of the laws plainly show. A mortgage, not recorded, is absolutely void, as against a subsequent bona fide purchaser, although the mortgage may be subsequently recorded before the recording of the conveyance of the purchaser. But as between two deeds, in all cases, and between two mortgages, the time of recording is the only test of the rights of the parties. No reason can be perceived for a distinction between the cases; and whichever rule is the most just, should be applied equally to all. The recording of an instrument is a public act, which fixes the date of its delivery beyond all question; and by requiring that test in all cases, vigi- lance will be promoted, and the temptation to fraud by the concealment of deeds, will be removed. " There is another distinction between deeds and mortgages, which this section will also abolish. The first mortgage, although first recorded, if not given in good faith and for a valuable consideration, is absolutely void as against any subsequent mortgagee or purchaser; so that the right of an assignee of such first mortgage, who had no notice of the fraud, would be postponed. But an innocent purchaser under a fraudulent (sfe^(^first recorded, is entitled to a preference against any subsequent purchaser or mortgagee. It seems evident that an innocent assignee of a mortgage, is entitled to the same protection as an innocent purchaser." '[§ 2. Same as enacted.] Original note. " This is according to the present practice, but perhaps not positive required by law." ■•[^S. Same as enacted.] Original note. " The -w or As ' and at the same time,' new. The existing law deprives the party for whose benefit the deed shall ' The notes in this chapter refer to ' Refers to i R. S. 756, § 2, supra, sections of chapter 3, part II, R. S., p. 814. now re-enacted in article VIII, The * Refers to I R. S. 756, § 3, supra. Real Prop. Law, supra, pp. 748-834. p. 820. ' Refers to i R. S. 756, § i, supra, p. 754- 1036 Appendix II. have been made, of the advantages ' given to mortgages' The above section deprives him of all advantage from the recording, which seems to be only a just extension of the principle." "* [§ 4. Same as enacted. In this edition, sub. 3, added from act of 1829, chap. 222.] Original note. "This section embraces every officer now author- ized by law to take the proof of deeds within the United States, and some more, viz.; District judges of the United States, the chancellor of the state, and the associate judges of the district of Columbia. The reason of each will be obvious. The words in italics, ' but no county judge, or commissioner of deeds for a county or city, shall take any such proof or acknowledgment out of the city or county for which he was appointed,' are inserted to remove an existing doubt; vide 4th Cowen, 218, and in conformity to title 1, chap. 3, § 21, as to commissioners. The qualification to the second subdivision, is new, but seemed necessary. The intervention of officers of the United States and of other states, is also confined by the above section, to cases occurring out of this state." ' [§ 5i ^1 7' Same as enacted, except that the provisions relative to France and Russia, and to the making acknowledgment before the American Con- sul at London, were added by the act " concerning the Revised Statutes," reported by Revisers, and passed Dec. 10, 1828.] Original note to section as first proposed. "As to foreign ministers, laws of 1816, ch. 119, p. 118, extended in the above section to South America and to charge des affairs, who are perhaps not technically ministers, although they perform all the func- tions of the office. "As to mayor of London, 3d section of act, ist vol. R. L., p. 370; the other mayors, laws of 1817, p. 58, extended to all persons residing or being abroad." Original note to amendments of December, 1828. " The three last propositions are recommended by gentlemen who are acquainted with the difficulties at present attending the proving of deeds, &c., in the countries specified. It is believed they will be a great relief to our citizens, as well as to our for- eign ministers." ' [§ 12, as reported ; not enacted; %\Q, R. S. substituted. ] Original note. "Latter part of first section of same act. The first words in italic are in conformity to the decision of the supreme court, in 20 John., 480; where it was held, that the same objection might be made to the proof of a deed by an incompetent witness, as if he had been offered on the trial. A point of such importance should be explicitly declared in the statute. The words ' described in, and,' supply a serious omission in the statute." ■*[§ 13, 14. Same as enacted, except a transposition in § 13.] Original note. "Instances have occurred where the want of such a provision has been severely felt; it is taken from 7th section of the act for giving relief in cases of insolvency, ist vol. laws, p. 463-" ' Refers to I R. S. 756, § 4, supra, ' Refers to l R. S. 758, § 12, supra, pp. 764, 773. 775 P- 786. i' Refers to I R. S. 757, §§ 5, 6, 7. 'Refers to : R. S. 758, § 14, supra, supra, p. 780. P- 788. Notes of the Original Revisers. 1037 [§ 15. Same as enacted, except the words "where the same are known" after " residence" in the report, omitted.] Original note . " i R. L. 369, § I; the part respecting residence of witnesses, new; deemed desirable in order to detect fraud or to sustain an honest deed." ° [§ 16, 17. Same as enacted, the words in § 17, following " thereby " having been added by the legislature.] Originalnote. " 5th section of same act, except that part which allows the proof to be contested. This is in con- formity to the decision of the supreme court in 4th John. Rep., 161; 12th do., 469; 20th do., 480." ^ [§ 18. Same as enacted.] Original note. " The words ' not of the degree of counsellor at law in the supreme court,' introduced, to conform the statute to the decision of the supreme court, in 5 Cowen, 485." ^ [§§ 28, 2g R. S.] Original note, "i R. L. 373, § 4. Varied so as to require the recording of the certificate of discharge. The practice of allowing a mortgage to be cancelled, without preserving the evidence on which it was done, is certainly dangerous, and is much complained of by clerks, who have no means provided by which they can show their authority." ' [§ 34 R. S.] Original note. "Act of 1813, § 8, with the addition of a penalty upon the recording officers." '[§ 35 ^- ^-i except that the words "malfeasance" were substituted for '''' misdemeanor" and the words ^^ or in relation to the cancelling of « mort- gage" introduced by the legislature.] Originalnote. "Part of act of 1823, p. 413, so far as relates to damages, which repealed that part of the gth section of the revised act of 1815. The part making any fraudulent prac- tice a misdemeanor, is new, but probably only the existing common law; at all events, deemed salutary." '[§41 R. S.] Originalnote. "Assignments of mortgages will be included in the term * conveyance,' as above defined; but the above qualification is proper in itself, and is agreeable to the opinion of the court of errors, in the case of James v. Morey, 2 Cowen's Reports.'' ' [§ 42 R. S.] Originalnote. " Laws 1823, 413. 'Original leases in fee,' omitted, as leaving much room for fraud, where every other species of con- veyance, even assignments of the same leases, or conveyances of part of the same lands, are required to be recorded." ' Refers to i R. S. 759, § 15, supra, ' Refers to i R. S. 762, § 34, now p. 790. § 134, Penal Code. 2 Refers to i R. S. 759, |§ 16, 17, « Refers to i R. S. 762, § 35, supra, now §§ 933, 935, Code Civ. Pro., p. 834. supra, pp. 770, 771. ' Refers to i R. S. 763, § 41, supra, 2 Refers to i R. S. 759, § 18, supra, ■ p. 828. p. 804. ' Refers to i R. S. 763, § 43, supra, * Refers to i R. S. 761, §§ 28, 29, p. 750. supra, p. 822. 1038 Appendix II. "CHAPTER VII.'" " OF FRAUDULENT CONVEYANCES, AND CONTRACTS RELATIVE TO REAL AND PERSONAL ESTATE." Original preRminary note to Chapter. " The following chapter contains a revision of the act of the 26th of February, 1787, ' for the prevention of frauds,' I R. L. 75. The provisions of this statute were transcribed chiefly from the English statutes against fraudulent com, eyances, (3 Hen. VII, ch. 4; 13 Eliz. ch. 5, and 27 Eliz. ch. 4.) The seven last sections are from the celebrated statute ^ for prevention of frauds and perjuries' (29 Charles II, ch. 3.) No alterations were made by the act of 1787, except in consolidating in one section (the 6tih, i R. L. 77) the provisos in the 6th section of the 13th, and the 4th section of the 27th Eliz. , "The original statutes, and particularly the statute of frauds, have been in England fruitful sources of litigation. No branch of the law has led to so great a number of difficult questions, a-nd upon none have the decisions been more contradictory upon minor points, or more iluctuating in their general principles. In our own books of reports, also, a very great pro- portion of the cases will be found to have arisen on the act of 1787. " Notwithstanding the great number of adjudged cases, the true construc- tion of many parts of the statutes is still unsettled. The decisions of our courts, upon that part of the act of 1787 which relates to fraudulent con- veyances, have, of late years, considerably diverged from the course of con- struction adopted in England; and if the same remark cannot be made as to our decisions on the other branch of the statute, it may, at all events, be truly said, that there yet prevail many uncertainties and diversities of opin- ion, in regard to the effect of several of its provisions. " The Revisers have, therefore, thought it impracticable and dangerous, to attempt to incorporate in the existing statute, the exposition which has been given by the courts to its various terms. And yet, they cannot hesi- tate to give it, as their deliberate opinion, that there are imperfections in this statute, which require to be remedied. " The only course that can safely be adopted, seems to be that suggested by Lord EUenborough, in the case of Doe v. Manning, (9 East, 59.) In that case, after holding that a voluntary conveyance is fraudulent, under the 27th of Eliz. as against a subsequent purchaser, even with notice, (a rule, by the way, which has been shaken, if not overturned, in the highest court of this state; see Verplanck v. Sterry, 12 Johns. 555), he remarks: 'Much property has no doubt been purchased, and many conveyances settled, upon the ground of its having been so repeatedly held, that a voluntary conveyance is fraudulent, as such, within the statute of 27th Eliz. And it is no new thing for the court to hold itself concluded in matters respecting real property, by former decisions upon questions, in respect to which, if it were res Integra they would probably have come to very different con- clusions. And if the adhering to such determination is likely to be attended ' The original notes to chapter VII, that ^^ omnium gatherum" of sections, partII,R. S., are of great importance, article VII, The Real Prop. Law, The chapter itself is re-enacted in supra, pp. 643-747. Notes of the Original Revisers. 1039 with inconveniences, it is a mattery?/ to be remedied by the legislature, which is able to prevent the mischief in future, and to obviate all the inconvenient conse- quences which are likely to result from it, as to purchases already made. ' " In accordance with these views, we have first given the act of 1787 ver- batim, (except the enacting clauses, and except also that we have omitted sections 7 and 8, as belonging, if proper to be retained, to the third part of the revision, to be enacted by the legislature, if they shall think that the preferable course.) We have then proposed as a substitute for the present statute, a series of provisions, limited in their effect to future conveyances and contracts. In preparing these provisions, our great object has been to restore (in conformity to the general course of our own courts,) the salutary principles of the original statutes, with such modifications and improve- ments as have been suggested by experience, or as seem to be demanded by our state of society. " If the substitute should be adopted by the legislature, some of the sec- tions will more properly be referred to other chapters of the second part, so as to confine this chapter to provisions strictly applicable to fraudulent conveyances or contracts; but for the sake of presenting more distinctly our views as to the disposition to be made of the act of 1787, we have here given all the sections proposed to be substituted for it. If the substitute is adopted, it will still be proper to republish the present statute, with the Revised Laws; but in that case, we conceive it will be unnecessary to re-enact it.'' [Here followed the act of the 26th of February, 1787, above referred to.] ' ' Title I. — Of fraudulent conveyances and contracts relative to lands.'' ' [§ I. Same as enacted.] Original note. " Intended as a substitute for the 3d section of the present statute. The numeration of the different modes of alienation, and of the different interests in lands, is quite unnecessary, as they are all embraced in the terms 'conveyance* and * lands,' as defined by the Revisers, in the last title of this chapter. ' Purchasers for a valuable consideration,' sub- stituted for ' those who shall purchase for money or other good considera- tion,' as more definite, and in conformity to the settled construction of the statute, (2 Taunt. 69.) A person claiming under a voluntary conveyance, founded on a good consideration merely, as distinguished from a valuable, was never meant to be protected. That prior purchasers should be included in the statute, is rendered indispensable by the preference now given by our laws to registered over unregistered deeds.'' ' [§ 2. Same as enacted.] Original note. " This section is intended to settle the question, whether a subsequent purchaser, with notice, can set aside a prior voluntary convey- ance. Upon what grounds it was originally decided, that a subsequent purchaser, with notice, was entitled under the statute, to set aside a. prior conveyance founded on a good consideration, such as love and natural affec- tion, merely on the ground that it was voluntary, it is difficult to conceive. ' Refers to 2 R. S. 134, § l, supra, 'Refers to 2 R. S. 134, § 2, supra, p. 720. p. 720. 1040 Appendix II. Such a doctrine, it has been well remarked, enables a donor of lands, -virho repents of his donation, to do that circuitously, which the law would not permit him to do directly; and by the aid of a third person, to disappoint, at his pleasure, the object of his former bounty, (Evans' Collec. of Brit. Statutes, vol. i, p. 368, note.) It would seem, however, from the later cases in England, that this doctrine is there firmly established; although several of their most distinguished judges have expressed their surprise and regret, that this exposition of the statute had ever prevailed, and have even inti- mated a wish that the legislature would interfere to correct the error, (9 East, 63; 4 Bos. & Pull. 332.) The supreme court, however, in this state, have, on all occasions where the question has come before them, shown a strong repugnance to follow the English cases, and have labored to restore a reasonable interpretation to the statute; and the Revisers are disposed to regard the decision of the court of errors, in Verplanck v. Starry, (12 Johns. 536,) as fully justifying the section proposed, even on the ground of author- ity. It is certainly embraced in the reasoning of the only two members of the court who delivered opinions." ^ [§ 3- Same as enacted, except that the word ''^provision" was substituted for ''^condition" as reported.] Original note. " 5 § stat. meaning extracted, and useless terms rejected." * [^ 4. Same as enacted.] Original note . *' New, but supplying an import- ant omission in the present statute, and plainly within its equity.'' ' [§ 5. Same as enacted.] Original note. "This section conforms to the construction which the 5th section of the statute has always received, [Moor, 611; Twyne's case, 3 Coke's Rep. 82.] As the terms, however, of sections 3 and 4, like those of the present law, do not embrace cases of this description, it seems proper that the legislature should declare the rule by which they ought to be gov- erned, instead of leaving the defect to be supplied by judicial interpretation." * [§ 6. Same as enacted, except that the legislature substituted the words "leases for a term not exceeding one year^'' in lieu of " leases not exceeding three years," as reported.] Original note. "This section is intended as a substitute for the gth, loth and a part of the I2th sections of the present statute. The first part of the gth section is unnecessary, since persons taking possession of lands under a parol grant, or by livery and seisin, in cases where written conveyances are required, as they acquire no title, will of course be tenants at will. The provision has, however, been inserted by the Revisers in another chap- ter, to which, if proper to be declared at all, it properly belongs. The limitation also of the rent on leases for three years, is omitted, as in this country entirely useless, and making the validity of the lease depend on a fact in many cases difficult to be ascertained. The person making the lease, is surely a safe judge of the rent to be reserved. Powers relating to lands have been included, in conformity to the construction which the statute ' Refers to 2 R. S. 134, § 3, supra, ' Refers to 2 R. S. 134, § 5, supra, p. 732- P' 733- ^ Refers to 2 R. S. 134, § 4, supra, * Refers to 2 R. S. 134, § 6, supra, p. 732. P- 651. Notes of the Original Revisers. 1041 has always received. By the I2th section declarations of trust must be signed by the party declaring them, but no reason is perceived why trusts may not be declared, as vrell as lands conveyed, by an agent acting under a power in writing.'' ' [§ 7. Same as enacted.] Original note. "Intended to express the sub- stance of part of § 12, of § 13, and part of § 14, of the present act." § 8 oj reported ; enacted with important variations § 8 ^. 5. Original note. "Founded on the nth section of the present act. Under that section it has been held, among other things, " I. That a letter or other writing, though written subsequently to the making of the agreement, is sufficient to take the case out of ^he statute. This has led to many refinements and distinctions. By omitting the words ■ note or memorandum thereof^' and requiring the contract to be reduced to writing, the language is made more precise, and the door closed to the introduction of similar exceptions. " 2. That the literal act of signing is not necessary, although the statute speaks of 'signing.' After setting out with this principle, the courts found themselves perfectly at large, as to what should be considered a signing To prevent difficulties of this sort hereafter, the Revisers propose to require that these agreements shall be subscribed. " 3. That it is sufficient, as against the party sought to be charged, if the instrument be signed by him; and accordingly the courts of equity will decree a specific performance of an agreement to sell lands, against the person who holds the written engagement of the other party signed by him alone, though the latter may be wholly remediless. Many of the ablest judges in England and in this country, have regretted this rule of construc- tion. (See the remarks of Chancellor Kent in 14 Johns. Rep. 489.) The Revisers have proposed in the above section, what seems to them a sound rule. " 4. That the consideration of the agreement be in writing. This has been followed in the above." ' [§ 9. Same as enacted, except that the words ^' lawfully authorized," were substituted by the legislature for " authorized by writing," as reported.] Orig- inal note. " Under the existing statute, it has finally been held that the agent need not be authorized by writing, 9 Ves. jr. 250; i Sch. & Lef. 31. The alteration it is supposed will be useful." ' Refers to 2 R. S. 135, § 7, supra, « Refers to 2 R. S. 135, § 9, supra, p. 651. p. 711. 66 GENERAL INDEX. [References are to pages. Specific References to Particular Articles and Sections of the Statute will also be found in the Table of Contents, at the beginning of the book.] ACCELERATION OF ESTATES rules for, 268, 277 does not take place, when, 269, 277 none of contingent remainders, 270, 272 no acceleration where limitation is void, 277 ACCUMULATIONS section of " The Real Property Law " regulating valid, 318 common-law rule for lawful, 318 Revised Statutes concerning, 318, 319 Thelliiaori's efforts at, 319 can be made only for minors, 318 may not be made during life of adult, 320 to pay off mortgages, 320, 375 accidental, 321 direction for, when implied, 321 when, may begin, 322 unlawful directions for, how favored, 322 : when minor destitute, courts may direct disposition of, for benefit of, 324 disposition of, when infant dies before distribution, 323 disposition of, when direction for, void, 322 disposition of, when not disposed of by settlor, 326 trusts for, 365, 379 for charity, 323 of personalty, 327 ACKNOWLEDGMENT (OF DEEDS) separate acknowledgment of married woman no longer necessary, 597, 782, 783, 784 of conveyances regulated, 764, 773, 775, 778, 779, 782, 785, 790 must be by person executing conveyance, 764 within the State may be made where, 773, 774 within the State to be made before whom, "jyi, 774 in other States to be made before whom, 77s in foreign countries to be made before whom, 779 [1043] 1044 General Index. [References are to pages.] ACKNOWLEDGMENT (OF DEEDS) — Continued requisites of, 785, 790, 791 certificates of, regulated, 790-799, 800, 802 by corporation, 802 when certificate of, to be authenticated, 804, 807, 808 when certificate of, to be recorded, 810, 818 forms of certificate of, 794-798, 802, 803 ADMINISTRATORS may avoid fraudulent acts of intestate, 73s ADOPTION statutes regulating, 851, 852, 853 by contract, 853 ADVANCEMENTS regulated, 888 how computed, 888, 890, 892 how adjusted, 893, 894 under powers, 480 deemed, when father takes title in son's name, 361 ADVERSE POSSESSION grant by person out of possession when void, 715, 716, 717, 718, 719 of lands under water, 88 AFTER-BORN CHILDREN when bound by conveyance, 226, 233 when bound by judgment or decree, 305, 337-342 AGREEMENTS certain, must be in writing, 651, 711 to devise lands, must be in writing unless partly performed, 656, 713 fettering inheritances subject to rule agains.t perpetuities, 263 to adopt, 851, 853 AGRICULTURAL LANDS cannot be leased beyond twelve years, 78, 144, 493 excess beyond twelve years only void, 145 powers to make leases of, 493 leases by trustees of, 428, 431 ALIENATION account of tenants' right of, 8, 10 who may alienate real property, 106 restraints on alienation prohibited, 78, 83, 106, 140, 297 of expectant estate, 311 by beneficiaries of trust estate, 413-419 See .Powers of Alienation; Perpetuities; Restraints on Aliena- tion General Index. 1045 [References are to pages.] ALIENS note of Commissioners of Statutory Revision on, ,902-924 note of Revisers of Revised Statutes on, 991, 992 disabilities of, to take and hold lands, 100, 102, 902 disabilities of, to serve as jurors, 128 removal of disabilities of, 103, no, in, H2, 113 how disabilities of, removed, 103, no, 113 devises to, void, when, 103, 104, 116 devises to, void unless deposition filed, 103, in, 116 •depositions of their intention to become citizens, no, in requisites and effect of depositions of, no when and how tliey may acquire and transfer real property, III can take by purchase, 112, 118 cannot take by descent, 114, 115, 118, 126 mortgages to, 115, 1 17 wives of, when naturalized, 99 wives of, when entitled to dower, 116, 118 not entitled to curtesy, 116 may take lands by marriage settlement, 117 trust for, when invalid, 117 title through, not to be questioned, 123, 124, 125, 126, 127, 886 liabilities of, regulated, 128 remainders to, when contingent, 257 ancestors being, do not bar descent, 886 intermarriage of citizen, with, 117, 120, 121 naturalization of, 99, 100, 102 collective naturalization of, 102 rights of, by treaty, 104, 118 Hawaiians not, 105 Porto Ricans not, 105 Filipinos not, 105 inhabitants of insular provinces not, 105 cannot grant a " power," 482 ALLODIAL LANDS all lands in New York made, 2, 15, 68, 69, 78, 80, 987 free of services, 78, 81 distinction between, and lands held by socage tenure, 81, 82 nature of " estates " in, 82, 134 no lands in England, 10, 59 ALTERNATIVE LIMITATIONS are those with a double aspect, 229, 250, 261, 291 when valid, 291 See Limitation and Limitation of Estates (rules of) AMENDMENTS of The Real Property Law, 898 1046 General Index. [References are to pages.] ANNUITIES defined, 264, 374, 383 when they violate rule against perpetuities, 265 trusts for, 265, 365, 374 when assignable, 265, 416 ANTICIPATION history of the restrictions on, 379, 380, 381, 414, 415, 416 statute against, 413 married women might be restrained from, 414, 415 APPORTIONMENT of perpetual rents, 183 of rent, where life tenant leases and dies, 613 ASSIGNEES FOR CREDITORS may avoid fraudulent acts and deeds of their assignor, 735, 736 ASSIGNEES IN BANKRUPTCY do not take contingent remainders, 226, 231, 313 take vested remainders of bankrupts, 226, 231 may reach surplus income of trust beneficiary, 401 statute against maintenance or champerty does not apply to conveyances from, 716 ASSIGNMENTS OF MORTGAGES are conveyances within recording acts, 749, 752 effect of record of, 828, 829 rights of assignees under, 757, 821, 823 See Mortgages. ATTESTATION when grant must be attested, 660, 661, 754 by subscribing witness, 786 ATTORNEY-GENERAL to represent indefinite beneficiaries of charitable trusts, 448, 454 ATTORNMENT to stranger," whert void, 620 doctrine of, 620, 621, 674 to mortgagee, 620, 622 necessity of, removed in all cases, except to mortgagees, 622, 674 AUTHENTICATION when county clerk's, necessary, 804 when other, necessary, '807 contents of certificate of, 808 effect of omission of certificate of, Sop' General Index. 1047 [References are to pages.] BARGAIN AND SALE conveyance by, 670 deeds of, declared " grants," 670 consideration necessary to support, 360, 662, 672 BASE FEE defined, 157, 158, 409 trustees take, 273, 274, 275, 409, 410, 411, 436, 438, 440, BASTARDS See Illegitimates BENEFICIARIES of a trust, cannot all be trustees, 371 of a trust, may be any number of persons, 383 of a trust may also take a legal estate by way of remainder, 205, 275, 290, 386, 417 creditors of, when they may reach surplus income, 399 when a trust is created by, for their own benefit, it is void as to their creditors, 378, 401 of a power in trust must be definite, unless trust for charity, 406, 450, 478 of charitable use may be indefinite, 406, 448 consent of, not necessary to trust, 372 nature of their interests, 368, 407 may not anticipate when, 413-419 when beneficiaries of express trusts may not alienate their rights, 413, 414, 41S, 416, 417. 418, 419 entitled to notice of application by trustees to sell or mortgage trust estate, 432 of charitable, educational, religious or benevolent uses and trusts may be indefinite, 406, 448-454, 54O, 541 attorney-general represents indefinite, 448, 454 of jwwers in trust, 478, 479 when more than one appointment to, must be equal, 523, 524 BENEVOLENT USES grants and devises for, regulated, 448 what are, 450 BONDS AND MORTGAGES title to, passes by delivery, 757 See Mortgages; Recording Acts. BRACTON works of, not authority unless supported by decisions, 9 CANCELLATION OF RECORDED INSTRUMENTS when action lies for, 833 1048 General Index. [References are to pages.] CAPACITY TO HOLD REAL PROPERTY who has, 98-105 and transfer same, 106, 107 CERTIFICATE OF ACKNOWLEDGMENT must be indorsed on conveyances, 790 contents of, regulated, 790 not a judicial act, 792 by subscribing witness, 792 reacknowledgment, 793 operation of, 793 when to state time and place, 799 when to be under seal, 800 for corporation, 802 to be authenticated, when, 804-809 forms of, 794-799 CHARGE ON LANDS does not suspend alienation, 265 when debts and legacies are a, 393, 394, 395, 396, 397 CHARITABLE USES abolished by Revised Statutes, 347 restored in 1893, 348 grants and devises for, regulated, 448 discussed, 448, 449, 450, 451, 452, 453, 454 appointments to, 540, 541 where no trustee of, named, 448, 452, 556, 557 list of works on, 28, note how breach of condition of, enforced, 170 must vest within the rule against perpetuities, 453 CHARITY accumulations for, 323 trustees for, S57 See Charitable Uses CHARTERS to cities and towns, 54, 71 of city of New York, S4i 71 confirmed after Independence, 71 CHATTELS REAL defined, 236 " estates for years " are, 191 not within " chattel mortgage statutes," 192, 287 execution against, 192 General Index. 1049 [References are- to pages.] CHATTELS REAL — Continued bound by judgments, 144, 287 all rules relative to future estates apply to limitations of chattels real, 286, 287 when estates for life of third person are, 193 permissible limitations of, at common law, 286, 287 freehold estate in, can commence in future, 288 pass to executors or personal representatives, 193 CITIZENS OF THE UNITED STATES may hold land in New York, 98 who are • citizens of the United States, 98, 99 sources of " citizenship," 98, 99, lOO foreign corporations not, 100 legal effect of expatriation of, loi naturalization of aliens, 98 CLASS gifts to, not presumed, 218, 332 gift to, defined, 218 gifts to, presumed to be to them as tenants in common, 332 powers of appointment or distribution to a, 523, 524 COLONIAL STATUTES account of, 58, 60, 61 repealed in 1828, 69 rights under, not affected by repeal, 61, 70 COMMISSIONERS OF DEEDS appointment of, 774, 781 cannot act out of jurisdiction, 774 COMMISSIONERS OF STATUTORY REVISION report of, on The Real Property Law, Appendix I, 899-984 notes of, authoritative, 87 work of, 47 COMMON LAW meaning of term, 23 many so-called doctrines of, modern, 6 under Duke of York, 54 introduction of, SS under the Crown, 62 of this State, 78, 83 COMMON-LAW TERMS still defined by the common law unlesp modified by statute, 87 1050 General Index. [References are to pages.] CONDITIONAL LIMITATIONS defined by statute, 294 -.term,, discussed, 160, 294, 295, 296, 303 See Limitation; Limitation of Estates. CONDITIONS parents of trusts and covenants running with the land, 12, 370 nature of, 165 classification of, 165 express, 168 implied, 167 mixed, 169 how construed, 168, 169 invalid, 169, 170 effect of impossible, 170 remedy for breach of, 170 time limit on, 170, 263, 296 who may enforce, 171, 313, 314 precedent, 168 subsequent, 168, 169, 171, 296, 370 what instruments may contain, 172 rule against perpetuities does not apply to subsequent, 170, 263, 296 powers subject to precedent, 496, 514 when trusts, when covenants, 169, 172 in favor of charities, how enforced, 170 when void, 169 how construed, 168 when trusts, or conditions subsequent, 370 CONNECTICUT certain conveyances by treasurer of, how to be acknowledged and recorded, 829 CONSIDERATION of deeds, 360, 662, 663 effect of payment of, on title, 359 marriage a, 722, 725 effect of payment of, on fraud, 729 CONSTITUTION important provisions of State, affecting the law of real property, 77-79 comments on the State, 79-84 effect of Federal, 67, 79 CONSTRUCTION of this act, 86, 97 revisers' n.oite? impprtcint in, 87 General Index. 1051 [References are to pages.] CONSTRUCTION — Continued of The Real Property Law, 47, 87 of executory devises, 198, 206, 307, 308, 507 of limitations to survivors, 216, 217, 218 favors vesting, 223, 224, 248 heirs not disinherited by implication, 219, 853 of power of appointment, 234 of vested and contingent, 209-233 of limitations tending to a perpetuity, 266, 267 of estates by implication, 185 estates not cut down when, 185, 271 of limitations, after void estates, 232, 297, 310 of patents, 73, 75 of limitations of expectant estates, 249 of trusts for accumulation, 321, 322, 323 of limitations on trusts, 365, 371, 383, 385, 386 of powers of sale, 396, 397, 398 of grants of powers, 541 of deeds, 646, 658, 672, 67s, 679 favors inheritance over devise, 842 See Suspension of Power of Alienation Contingencies ' what, may enter into limitations of estates, 248, 249, 254, 255, 256, 294, 296 improbability of, not to avoid limitations of future estates, 292, 306 future estates may be limited on, 294, 296, 306 contingent this term, when applied to estates, defined, 209 estates discussed, 209-233, 311 remainders discussed, 209-233, 311 estates not favored by construction, 223 ' what, estates tend to perpetuities, 230, 238, 246, 248, 249, 252 possibilities, 311, 312, 313, 314, 839 interests, 209, 312 interests descendible, 311, 313, 839 See Remainders; Limitation of Estates contract for the sale or lease of real property void unless, in writing-, 711, 712, 713, 714 executory, to be recorded, when, 767, 883 : i to devise lands to be in writing, 656, 713 to adopt child as heir, 853 CONVERSION OF PROPERTY- equitable .takes pJace when, 393, 842, , , 1052 General Index. [References are to pages.] CONVEYANCES defined, 643 account of primitive, 20, 21, 22, 648, 649 when written, necessary, 651-^60 tortious, abolished, 668, 673 by estoppel, 668 effect of, where property is leased, 674 with intent to defraud, when void, 720-736 void as to creditors, void as to their heirs and assigns, 727 the term defined in article on recording conveyances, 749, 758 not recorded, void, when, 754 proofs of, yTi with power to revoke, when void, 732, 733 See Fraudulent Conveyances ; Acknowledgments; Proof. CONVEYANCES AND MORTGAGES reports and notes on, of Commissioners of Statutory Revision on, 949-961 notes of revisers of Revised Statutes, 1023-1025 article on, 643-747 must be in writing, when, 651-659 tortious, abolished, 668, 673 by tenant for life or years of greater estate than he has, passes what, 673 " grants " are, 660, 670 take effect, when, 660, 665, 674 estate which passes by, 667 where property is leased, 674 covenants in, 675, 679 mortgages on property inherited or devised, 677 lineal and collateral warranties abolished, 681 construction of covenants in, 679, 682, 684 short forms of, 691, 692, 693, 739, 743, 745 statutes requiring written, not to be made instrument of fraud, 363, 653, 659, 714 covenants not implied in, 679 acknowledgments of, 764-785 recording of, 749-763 See Grant; Lease; Mortgages; Recording Acts CONVEYANCING historical account of, 1-49 COPIES OF INSTRUMENTS when to be recorded, 770, ^^2 CORPORATIONS a for.rign corporation not a citizen, 100 limitations of estates to those, to be formed, 257, 292, 293 General Index. 1053 [References are to pages.] CORPORATIONS — Continued limitation of remainder to corporation to be formed, bad at common law, 257, note 66 leasing powers of, 429 acknowledgments of conveyances by, 765, 802 form of certificate of acknowledgment by, 802 COUNTIES establishment of, in New York, 53 COURTS OF EQUITY jurisdiction of, when not abridged, 738 account of, 343, 367, 444, 445, 446 COVENANTS origin of covenants running with the land, 12, 695 in mortgages, not implied, 675 no longer implied in conveyances, 679, 680 construction of, in grants of freehold interests, 682, 688 bind representatives of grantor and mortgagor, 690 inure to whose benefit, 690 construction of, when in mortgages on leases, 739-742 penalty for using long forms of, 831 conditions when construed as, 169, 172 for perpetual renewal of leases, 146, 264 to rebuild, etc., 147 not implied in perpetual leases, 177 usual, irt leases, 655 running with the land discussed, 12, 690, 695-710 restrictive, are incumbrances, 709 COVENANTS TO STAND SEISED still operative as conveyances, 355 CREATION AND DIVISION OF ESTATES article of The Real Property Law on, 131-342 See Estates. CREDITORS grant to one person, v>rhen consideration paid by another, fraudulent as to latter's, 359 trusts for the benefit of, 365, 373, 438 when they may reach surplus income of trust estate, 399, 400 termination of trusts for, 438, 439 may enforce execution of " powers,'' when, 498, 525, 528 certain powers are "absolute" as to, 503, 508 when marriage settlements valid against settlor's, 514 1054 General Index. [References are to pages.] CREDITORS — Continued defective execution of powers aided in favor of, 528, 529 beneficial powers of insolvents pass to assignee for, 528 conveyances with intent to defraud, made void, 720-736 remedies of, when conveyance fraudulent, 726, 736 at common law, no right to issue execution against real property, 394 growth of right of, to take real property in execution, 394, 395 remedy against decedents' estates, 395, 396 may disaffirm when executors fail to act, 736 CROSS-REMAINDERS discussed, 205 limited on estate for life to tenants in common, 205 invalid limitations of, 205, 262 when limited on a defeasible estate, 271 CROWN supremacy of, in English land law, 2, 10, 59 sole allodial proprietor, 15, 80 grants by, in New York, 43, 81 owned all ungranted lands, 80 all original titles to estates emanated from, 70, 80 certain grants by, void, when, 79 power of, to grant lands in New York, 59 laws under the, 58, 61 assembly under the, 60, 61 common law under the, 62 CURTESY estate by the, 837, 883 aliens cannot have, 116 1 effect of conveyances of tenants by, 673 when fee determinable, 164 CY PRES DOCTRINE , does not prevail in this State in respect of " powers," 469, 527, 540, 541, 548 does apply to certain powers of appointment to charity, 451, 452, 469, 541 when- to be applied' by statutes, 541 does not apply to private trusts, but applies to public or charitable trusts, 449. 451, 469, S4I DEEDS when they became necessary to conveyances of lands, 649, 651 what constitute, 646, 658, 660 take effect only from delivery, 665 estate which passes by, 667 General Index. 1050 [References are to pages.] ., ,■ DEEQS^Goiitinued good inter .partes without acknowledgment or attestation, 66i require one witness, when, 660, 66i , of bargain and sale and lease and release made " grants,'' 670 language of, 646, 647, 672, 691 covenants in, not implied, 679 -, of public officers need not be acknowledged, 765 when njade, evidence, 766, 770, 771 certain, to be deemed mortgages, 820 consideration of, 662, 663, 722, 729 of lease and release made grants, 670 unrecorded, preference over judgment, 756 penalty for using long form of, 831 short form of, 691 See Grant; Mortgages; Recording Acts; Dower; Married Women DEFINITIONS " ancestor," 887 " annuity," 264, 265 "class," 218 " descent," 844 " foreshore,*" 94 " hereditament," 87, 88 " lands," 87 " limitation of estate," 158 "perpetuity," 236, 244, 256 " possibility of reverter," 162, 195 '■power," 467 "purchase," 103, 112 " quality of estates," 135 " quantity of estates," 135 " real property," 86 "rent," 148 " seisin," 107, 561, 839 " tenement," 87, 88 "trust," 369 DELIVERY inception of effect of written instrunlerif, 665 deeds take effect from, 665 presumption of, 666 DEMISE See Lease DEPOSITION by aliens, in, 112, 113 1056 General Index. [References are to pages.] DESCENT notes of Commissioners of Statutory Revision on article on, 970-974 notes of revisers of Revised Statutes on article on, 1032-1034 defined, 844 of real property, regulated, 835-888 aliens cannot take by, 112, 118 from aliens, regulated, iii, 112, 114 what laviT regulates descent from aliens, 114, IIS from native women married to foreigners, regulated, 120, 121 of " remainders," 226, 312 posthumous children take by, 304 of contingent interests, 312 of possibilities, 164, 312, 313 of determinable fees, 314 or devolution, of trust estate, 440, 441, 442 of powers, 405, 526, 527, 556, 557 what property descendible, 83s, 838, 839, 840, 841, 842, 843 general statutory rules of, 844-888 common-law rules of, 845, 846, 847, 848 who entitled to take by, 844 descendants of equal degree take equal parts by, 854 descendants of unequal degree take by representation, 856, 857 when father takes by, 858, 859, 860 when mother takes by, 861, 862 when collateral relatives take by, 863, 864, 865, 868 how brothers and sisters and their descendants take by, 866, 867 when uncles and aunts and their descendants take by, 868, 869, 870 from 'illegitimate children, 872, 873, 874, 87s relatives of the half-blood take by, when, 876, 877, 878 rule for non-statutory cases of, 881, 882 from husband or wife, 879 posthumous children take by, 883, 884 when sole or in common, 885 alienism of ancestor does not bar, 886 when grandparents take by, 868, 871 DETERMINABLE FEES descend, 314 discussed, 159, 160, 161, 163, 164, 172 enlarged, how, 172 no remainder on, 24, note, 160, 225 " possibility of reverter," subsists on, 163, 166 dower and curtesy in, 164 See "Fee" or "Fees" DEVISES to aliens void, when, 103, 104, 116 to corporations to be formed, 257, 258, 292, 293 General Index. 1057 [References are to pages.] DEVISES — Continued of "expectant estates," 311 where they lapse, 333 lapsed, go into the residuary now, 333, 389, note 73, 853 certain, to be deemed " powers," 388 for charitable purposes, regulated, 448 of powers, 483, 485, 541 power to dispose of estate by, 512 estates which pass by, 667 DISSEISORS coming in by same disseisin do not hold as joint tenants, 332 DIVORCE account of, in New York, 575 release of dower by divorced woman, 490 effect of foreign, 577, 578 effect of, on tenancy by entireties, 334, 577 DOCKS right to erect, 91 rights of owners of, 93 DOWER notes and report of Commissioners of Statutory Revision on, 943-946 notes of revisers of Revised Statutes on, 1025-1028 article on dower, 558-604 estate in, recognized in Magna Charta, 17 wives of aliens, when entitled to, 104, 116, 118 aliens cannot have, 116 in estates in remainder, 226, 562, 596 statutory definition of, 558, 560 under the laws of the Province of New York, 559 under the laws of this State, 559 prerequisites of, 561 in what property, 226, 563, 564, 565 in what trusts, 563 remedy if dower not assigned, 566 period in which dower may be demanded, 567 widow's remedy in equity, 567 in lands exchanged, 568 in lands mortgaged before marriage, 569 in lands mortgaged for purchase money, 570 is subject to vendor's lien, 571 in surplus moneys, 571 in surplus proceeds of sale under purchase-money mortgages, 572 67 1058 General Index. [References are to pages.] DOWER — Continued widow of mortgagee not endowed, 574 when dower is forfeited by wife's misconduct, 575 when barred by jointure, 579 when barred by pecuniary provisions, 582, 583 when widow to elect between jointure and dower, 584 assent of intending wife to bar dower, 585, 586 post-nuptial settlements to bar dower, 584 election between devise and dower, 587, 588, 589 when widow deemed to have elected, 590 effect of widow's neglect on her election, 591 widow's application to extend time for her election, 592 when provision in lieu of, forfeited, S93 husband's acts, deed, conveyances, judgments, without wife's assent, do not bar dower, 594 in husband's defeasible estates, 594 how released to third persons, 595 effect on, of deed by husband and wife, 596 release of, to husband, 596 release of, by lunatic wife, 597 when widow may assign her, 598 effect of subsequent avoidance of husband's deed on, 597 widow may remain in husband's house forty days after his death, 599 widow may bequeath a "crop," 601 ' release of, by divorced woman, 602 may be released by attorney, 604 widow's assignment of, not a conveyance of land adversely possessed, 717 in determinable fee, 164 DRAINAGE laws concerning, 96 DUTCH GRANTS a source of title, when, 50, 57, 80 See Note of Revisers of Revised Statutes on. Appendix II, pp. 989, 990 DUTCH LAW in New York, reviewed, 50, 55, 57, 62 present survivals of, 62, 63, 80 "DYING WITHOUT ISSUE" meaning of, 284 EASEMENTS grant of, to be in writing, when, 651, 654 connected with estates of inheritance, 702 General Index. 1059 [References are to pages.] EDUCATIONAL USES grants and devises for, regulated, 448 what are, 450 ELECTION between devise and dower, 587, 588, 589 between jointure and dower, 584 when complete, 590 ENCUMBRANCERS conveyances if fraudulent made void as to subsequent, 723-736 rights of assignees of, against fraudulent conveyances, 727 rights of bona Me, protected by the statute against fraudulent convey- ances, 730, 731 power of revocation avoids instrument as to subsequent, 732 ENTAILS effect of statutes abolishing, 17, 46, 187, 188, 197 aeclared abolished, 187, 188, 189 EQUITABLE CONVERSION See CoNVEKsiON of Property EQUITABLE ESTATES before the Revised Statutes, 407, 408 abolished, 408 effect of recording title to, 763 EQUITY OF REDEMPTION cannot be dealt with orally, 658 agreements fettering, invalid, 742 ESCHEATS origin of, 103 rights of British Crown to, 126, 127 State of New York succeeded to Crown's right to, 83, 126, 127 laws regulating, 78, 127 right of, barred, by alienation of lands to citizens, 126, 127 ESTATES original report of Commissioners of Statutory Revision on, 924-930 original notes of revisers of the Revised Statutes on, 992-1066 article on legal, 131-342 history of limitations in, 1-49 growth of, IS nature of subordinate interests in, 22, 133 common-iaw rules regulating, 23 1060 General Index. [References are to pages.] ESTATES — Continued in New York, 15, 133, 136 creation and division of future, regulated, 131-342 enumeration of, 131, 132 quantity and quality of, 131, 135, 311, 329 meaning of term, 132 nature of, in New York, 133, 134, 135, 136 in allodial lands, 134 before the Revised Statutes, 135 since the Revised Statutes, 136 of inheritance, 132, 137, 155 for years, 132, 142, 143, 191 terms of years are, 143 limitations of estates in fee, 156, 158, 159 classifications of, 18, 132, 190, 211, 212, 213, 214 of freehold, defined, 190, 193 in possession and expectancy, 19s, 196, 311, 329 " future," in point of possession defined, 197, 200 when vested, when contingent, 209-233 construction favors vested, 223, 224, 248 in trust, 247 for life, 132, 137, 139 pur autre vie, 138 when they result, 310 expectant, 195, 311 in severalty, joint tenancy or in common, 329, 331 executed uses confirmed as legal, 344 trustee of passive trust takes no, 356 when executors, etc., do not take legal estate, 388 trustees of express trust take in fee, 273, 354, 407, 409, 411, 428, 430 when estate of trustee ceases, 436, 437, 438 devolution of, of trustees, 440, 441, 442 conversion of lesser estates into greater, 503-510 of freehold can be conveyed, etc., only by a writing, 651 reservation of, 496 may pass by devise of rents and profits, 646 by implication, 185 by wrong, abolished, 668, 673 derivative, 153 how conveyed, 154 which pass by deed or devise, 667 not cut down, when, 185, 271 See Estates for Life; Estates at Will; Estates by Sufferance; Estates for Life of Third Persons; Estates for Years; Estates in Possession and Expectancy; Estates of In- heritance General Index. 1061 [References are to pages.] ESTATES AT WILL a division of estates in land, 132, 140, 151 definition of, 151 are " chattel interests," igo not liable to sale on execution, 190 what notice terminates, 631, 632 ESTATES BY SUFFERANCE a division of estates in land, 132 defined, 151 are chattel interests, 190 not liable to sale on execution, 190 what notice terminates, 631, 632, 633 ESTATES FOR LIFE of tenant himself, 22, 132 continue a division of estates in land, 132, 137 incidents of, 139, 140 are estates of freehold, 190, 279 successive estates for life must be to persons in being, 268 rules at common law, 201, 251, note 25, 253, note 41, 268 leasing powers connected with, 140 restraints on alienation of, 108, 109, 140 surrender and merger of, 140, 142, 153 successive, regulated, 268 created on a term of years, 279 when changed into a " fee," 503 no, as remainder on term of years, 282 when sold with contingent remainders, 337-342 See Tenant for Life ESTATES FOR LIFE OF THIRD PERSONS how they arose, 138 when a chattel real, 193 when a freehold, 193 remainders limited on, to be in fee, 273 estate to trustees not, 273 ESTATES FOR YEARS continue a division of estates in land, 132, 143 are chattels real, 190 execution against, 192 when changed into a fee, 503 conveyed only by deed in writing, 651 lease for years need not be recorded in certain counties, 749 incidents of, 14T bound by judgments, 144 1062 General Index. [References are to pages.] ESTATES FOR YEARS — Continued tenant of, when trustee, 144 in agricultural lands, 78, 144, 493 rents reserved on, 148 restraints on alienation of, 109, 141 covenants running with, 707 seq. See Lease; Landlord and Tenant; Tenant for Years ESTATES IN POSSESSION AND EXPECTANCY defined, 195 classification, in respect of time of enjoyment, 19S enumeration of, 196, 197 " expectant estate " not defeated by act of owner of precedent estate, 306 how " expectant estate " defeated, 306, 307 qualities of expectant estates, 311 are descendible, devisable and alienable, 311 when deemed created, 328 ESTATES OF INHERITANCE a division of estates in real property, 132, 137, 155 quantity of, 155 when cut down by a subsequent limitation, 185, 271 are estates of " freehold," 190 rents reserved on, 149 what words in conveyance pass, 643, 644, 645, 646 ESTATE PUR AUTRE VIE when a " freehold," 193 See Estates for Life of Third Persons ESTATES TAIL declared abolished, 187 really converted into fees simple, 187, 197 what words create, 188 in personalty, 188, 189 remainders limited on, 187, 188 old rule of perpetuities did not apply to subsequent limitations to, 240 See Entails EQUITY influential in moulding law of real property, 2, 343, note See Courts op Equity ESTOPPEL as between the parties thereto, grants operate as an, 668 EVIDENCE of deeds, 766, 770, 771 of powers of attorney, 'J(>^ General Index. 1063 [References are to pages.] EXECUTORS take and hold real property as joint tenants, 332 when they take a " power " and not a fee, 388 construction of deeds by, 689 may avoid fraudulent acts and deeds of their testator, 735 foreign, may satisfy mortgages, 823 power of sale to, does not authorize mortgage, 392 have not to do with real property, 390 short form of deed or grant by, 692 EXECUTORY DEVISE definition of, 39, 40, 249 classified, 40, 198 no such thing since the Revised Statutes, 198, 200, 249 power of disposition by first taker, formerly defeated an, 307, 308, 507 what was an, 198, 199 now a " future estate," 199 limitation never construed as an, if it may take effect as " remainder,' 198, 206, 217 old rule of perpetuities applied to, 41, 199 EXPECTANT ESTATES See Estates in Expectancy EXPRESS TRUSTS discussed, 365-387 See under Trusts FEALTY incident of tenure, 81, 82 defined, 81 "FEE" OR "FEES" originally synonymous with " feud," 13 classification of fees, 17, 18, 19, 156, 157 definition of, 16, ISS qualified, 157, 158, 410 "base," defined, IS7 " common law," 162 "determinable," 159, 160, 161, 163, 225, note •■ determinable,'' how enlarged, 172 "determinable" are descendible, 314 " defeasible," 236, 258, 289, 307 1064 General Index. [References are to pages.] "FEE" OR "FEES" — Continued when estate for life or years becomes a, 503 certain ''powers" create a, 503, 508, 510 what words now pass, 643, 644, 645 how to be granted, 643, 651, 660 several, may be limited in the alternative, 24, note, 291 not cut down, when, 185, 271 limitation of, 155, 156, 160, 161, 236 may be mounted on a, 160, 236, 258, 260, 271, 274, 275, 289, 307 embraces all powers, 135, 390, 402, 467 FEE-FARM definition of, 18, 148, 173, 177 rents, 174-185 restraints on alienation of, void, 182 FEE SIMPLE definition of estate in, 13, 16, 155 a normal type of fees, 17 usual estate granted by Crown, 81 estates tail converted into, 187 classification of estates in, 13, 18, 19, 22, 156 contrasted with fee simple absolute, 153 only " fee " now known in New York, 155, 157 may be " mounted on a fee," 160, 236, 258, 261, 289, 307 embraces all "powers," 390, 402, 467, 510 not cut down when, 185, 271 reservations on grants of, 83, 186 an estate of freehold, 190 FEE SIMPLE ABSOLUTE contrasted with " fee simple," 155 formerly denoted same thing as " fee simple," 155 determinable fees, enlarged into, 172 FEE TAIL origin of, 17 See Entails FEOFFMENT ancient mode of conveyance, 20, 44, 648 conveyance by, abolished in New York, 20, 648 conveyance by, worked a forfeiture, when, 673 FEUDALISM meaning of, 6 nature of, 7 never existed in this State, 44, note, 134 note of Revisers of Revised Statutes on, 987-991 General Index. 1065 [References are to pages.] FEUDAL SETTLEMENT land law of England, due to, 2 characteristic of English, lo FEUDAL SYSTEM influential in Anglo-American law of land, 3, 5 origin of, 6 relaxation of, 14, 49 never in force in New York, 44, 134 FEUDAL TENURES declared abolished, 78, 79 note of Revisers of Revised Statutes on, 987-991 See Tenures FINES mode of conveyance, 21 abolished in New York, 22 FISHERIES rights in, discussed, 95 FIXTURES when they descend to the heir, 840 law of, discussed, 152, 153 FORESHORE defined, 94 FORMS of certificates of acknowledgment, 794, 795, 796, 797, 798 of certificate for corporation's acknowledgment, 802 of certificate of acknowledgment by corporate attorney in fact, 803 of deed or grants of conveyance, 691 of mortgage, 692 of executors' or trustees' deeds, 692 of mortgage on lease, 745 penalty for not employing short, 831 FRAUDS, STATUTE OF See Statute of Frauds FRAUDULENT CONVEYANCES grant to one when consideration paid by another, fraudulent, when, 359 conveyances of real property with intent to defraud subsequent pur- chasers void as to them, 720, 721, 722, 723, 727 remedies of creditors against, extended to heirs and assigns, 727 1066 General Index. [References are to pages.] FRAUDULENT INTENT always a question of fact, 728 FREEHOLD what are estates of, 190 what are estates less than, 140, 190 in a rent in esse, 316 what passes a, 660 grants of, to be in writing, 651 requisites of grant of, 660 construction of covenants in grants of, 682-690 lease for lives need not be recorded in certain counties, 749 leases for lives could not begin in future, 253, note 38, 289, 429, note 60 estates of, could not at common law commence in future, 24, 202, 253, 288 FUTURE ESTATE defined, 197, 198, 199, 200 common-law rules relative to, abrogated, 288 See Limitation of Estates GENERAL LAWS construction of, 86 notes of Commissioners of Statutory Revision on, 87, 899, 984 GLANVILL account of, 9 text of, not authority unless supported, 9 GRANT with attornment, 22 construction of public, 73, 75 effect of, when consideration paid by third party, 244 for charitable, religious, educational, or benevolent purposes, regulated, 448 of fees, or freeholds, to be in writing, subscribed, etc., by grantor, 651, 660 requisites of, 660 take effect from delivery, 665 what estates pass by, 667 tortious, abolished, 668, 673 operate as estoppels between the parties, 667 deeds of bargain and sale and " lease and release " are, 670 construction of covenants in, 679, 682, 684 construction of grant of appurtenance and all the rights and estate of grantor, 689 construction of grant in executors' deed, 690 effect of, when property in adverse possession, 715 General Index. 1067 [References are to pages.] GRANT — Continued if not acknowledged, to be attested by one witness, 660 by Duke of York, 57 Dutch, 50 by Crown, 59 HALF BLOOD relatives of the, when they inherit, 876, 877, 878 HEIRS meaning of the term, in certain limitations, 193, 283, 285, 298, 304 remainder to " heirs " of life tenant is now a vested remainder, 219, 224, 298 under rule in Shelley's case, 298 the term, no longer necessary to pass a fee, 643, 644, 645 must satisfy mortgages of ancestor, when, 677 must answer for ancestor's warranties, when, 681 have the remedies of their ancestor against fraudulent conveyances, 727 not disinherited by implication, 219, 853 entitled to everything not devised, 853 See Shelley's Case, Rule in HEREDITAMENTS defined, 86, 88, 137 rents are incorporeal, 173, 180, 182, 315 descent of, 840 transfer of, to be in writing, 651, 654 HOLLAND LAND COMPANY acts concerning; 804, 80s HUSBAND AND WIFE tenants by entireties, when, 331, 333, 577 effect of joint note to, 334, note, 589 may convey directly to each other, 597 legal effect of wife's absence for five years, 577 conveyances to defraud wife, 722 effect of contracts between, when made before marriage, 581 descent from, 879 See Married Women IDIOTS declared incapable of transferring real property, 106, 108 ILLEGITIMATES descent from, 862, 872 inheritance by, 851, 857, 872 when legitimated, 873 1068 General Index. [References are to pages.] INCORPOREAL HEREDITAMENTS rents are, 173, 180, 182, 315 reversions and remainders not, 207 conveyance of, to be in writing, 651, 654 covenants running with, 710 See Hereditaments INCUMBRANCE a restrictive covenant is an, 709 INCUMBRANCER See Encumbrancers INDEXES no part of public record, 762, 816 each recording officer must provide books for indexes of conveyances, etc., 815 directions for, 815 INDIANS certain purchases and contracts by, for sale of lands when void, 78 heirs of patriotic, may take and hold lands granted their ancestors, 129 conveyances by, regulated, 78, 129 INFANT cannot transfer real estate, 106 may execute powers, when, 486 assent to bar dower, 579, 581, 586 accumulation to be for, 318, 319 marriage settlements by, 486, 487 dower of, how barred, 579, 581, 586 en ventre sa mere within the rule against perpetuities, 242, 383 is a life in being when, 383 remainder to, 304 accumulation for, must begin after birth of, 318, 320 trustees of, not to sell when, 427 after-born, how far bound by prior deeds, partition suits, decrees, etc., 226, 233, 30S, 337-342 sale of interests of, 337-342 inheritance of, when lands condemned, 842 born after execution of parent's will, 884 See Accumulations; Minors INHERITANCE term defined in Article on Descents, 836 estates of, 132, 137, 155 estates not of, 132, 151, 190 "on the part of the mother," 859 See Estates General Index. 1069 [References are to pages.] ISSUE meaning of term in certain limitations, 283, 285, 304 " dj'ing without," meaning of, 283, 284 when word of hmitation, 28s, 301 JOINT TENANCY definition of, 331 when estates are to be held in, 332 what words create, 332 partition of, 333 when inheritances held in, 885 JOINT TENANTS who are, 329 executors and trustees take as, 332 JOINTURE when a bar to dower, 379, 580, 581, 582, 583 JUDGMENT no priority over unrecorded deed, 756 JUS PUBLICUM relating to waters, 93 KING See Crown LANDLORD AND TENANT article on, 605-642 report and notes of Commissioners of Statutory Revision, 946-949 notes of the revisers of the Revised Statutes on, 1028, 1029 conventional relation of, 606 " use and occupation by tenant," entitles landlord to recover, when, 60S, 606, 607, 608, 609, 610 rents due on life leases recoverable, 611, 612 rents, when apportionable, 185, 613 attornment, 620, 621, 622 tenant must give notice of possessory action to landlord, 623 effect of renewal on sub'-lease, 624 when tenant may surrender premises, 625, 626, 627, 628, 629, 630 where landlord leases premises for unlawful purposes, 640 duration of certain agreements in New York city, 641 effect of transfer of reversion on lease, 615-619 effect of assignment of lease, 615-619 landlord's- obligation to tenant, 627 tenant's obligation to landlord, 627 1070 General Index. [References are to pages.] LANDLORD AND TENANT — Continued termination of tenancies, 631 effect of holding over, 635, 637 covenants between, run v^ith the land, 708 seq. See Lease and Rents LANDS defined by statute, 86, 87 under vifater, 70, 88, 89 formed in oceans, rivers and streams, 96 condemned, under right of eminent domain, descend to whom, 841 LAPSED DEVISES when they go into the residuary, 333, 389, note 73, 853 LEASE what it is, 142, 154, 493, 655 usual covenants in a, 65s of agricultural lands beyond twelve years void, 78, 144, 14S, 431, 493 of urban lands good though perpetual, 145 for twenty-one years with renewals, 14s, 146 by trustees and others, 375, 428, 429, 430, 431, 492, 493 by corporations, 429 effect of renewal of, on sub-lease, 624 surrender of, discussed, 625, 626 when it begins and ends, 639 for lives could not begin in futuro, 429, note 60 duration of certain agreements for occupation in New York city con- tinue how long, 641 for unlawful purpose void, 640 longer than one year must be in writing, 651, 654, 711, 712 longer than three years a conveyance, and must be recorded, when, 749, 754 construction of covenants in mortgages on, 739, 740, 741, 743 for lives or years in certain counties need not be recorded, 749 by tenant for life, 491, 492, 493 covenants implied in leases for years, 679 covenants not implied in "perpetual leases," 177 so-called '" perpetual " discussed, 173-185 effect of assignment of reversion on, 615-619 mutual obligations under, 627 assignments of, when to be in writing, 651, 656 See " Fee Farm," and " Rents " LEASE AND RELEASE one mode of conveyance, 22, 670 a deed of, is now a " grant," 670 consideration of, 360, 662, 663 General Index. 1071 [References are to pages.] LEGACY when charged on land, 393, 397 LEGATEES trusts for, 365, 374 when may extinguish power in trust, 390, 393 LEGITIMATION OE CHILDREN by subsequent marriage of parents, 857, 873, 874 LETTERS PATENT what are, 76S to be recorded, when, 768 construction of, 73, 75 See Patents LIMITATION definition of " limitation of estate," 156, 158 definition of "' determinable limitation," 159, 160, 161, . 164 definition of " collateral," " conditional " and " contingent," 160, 294 subject to condition, 158, 160 with a double aspect, 229, 250, 261, 291 a " conditional," defined by statute, 294 LIMITATION OF ESTATES [RULES OF] prescribed by law, 156, 158, 159, 160, 161, 162 history of, 1-49, 237 at common law, 23, 24, 25, 35, 160, 251, note 25, 268, 280, 283, 286, 288, 289, 291, 294, 304, 306, 311 gift of " estate of inheritance " not cut down by subsequent clause, 185, 271 when limitation of cross-remainders void, 205, 206, 271 " to survivors," 2i6 limitation of life estate to " A," remainder to his heirs, creates vested estate in remainder, 219, 220, 224, 298 what, " open to let in," 220, 231, 232 to posthumous children, 231 which suspend the power of alienation unduly are void, 226, 236-267 what limitations now tend to perpetuities, 236, 246, 247, 249, 256, 261, 262 in trust, 247, 264 when vested, 209-233 when contingent, 209-233 to corporations to be formed, 257, 292, 293 a fee may now be limited on a fee, 160, 236, 258, 260, 271, 274, 275, 289, 307 rule against perpetuities does not apply to conditions subsequent, 170, 263 for benefit of annuitants, 264, 265 1072 General Index. [References are to pages.] LIMITATION OF ESTATES [RULES OF] — Continued of successive estates for life to be limited to two lives in being, 268 life estates beyond two, when accelerated, 268, 269, 270 when partly valid and partly void, 2b6 when on estate for life of third persons, remainder to be in fee, 273 remainder contingent on determination of term of years valid, 288, 289 remainder on term of years must vest after two lives in being, 279, 288, 289 remainder on term of years if for life must be to person in being, 282 remainder on " death of one without issue " means issue living at death of ancestor, 283, 284, 285 all provisions relative to future estates ■ apply to limitations of chattels real, 286 common-law rules relative to, abolished, 288, 289, 292, 306 estates of freehold may now be created to commence in futuro, 253, note 36, 288 estates for life may be created in a term of years and a remainder lim- ited thereon, 288 two or more future estates may be created to take effect in the alterna- tive, 24, note, 291 " a fee may be mounted on a fee," 160, 236, 258, 261, 288, 307 future estates may be limited on improbable contingencies, 292, 306 an expectant estate may be defeated in any way settlor provides, 306 over, not permitted on breach of condition subsequent, 295, 296, 302 when remainder is limited on a contingency, not defeating a prior estate, it takes effect in possession only on death of first taker, or on expira- tion by effluxion of time of term of years, 302 posthumous children now take on limitations to heirs, etc., or on con- tingency of death of any one without issue, 304 not now defeated if precedent estate determines before future estate vests, 306, 310 expectant estates are descendible, devisable and alienable, 311 when in consequence of a valid suspension of power of alienation or ownership rents and profits accumulate and are undisposed of, they go to persons entitled to " next eventual estate,'' 326 when estate is devised to two or more, not being trustees, they take and hold as tenants in common unless otherwise specified, 331 trustees take no estate when trust is passive, 356 all the beneficiaries of a trust cannot be trustees, 371 a devise to executors or trustees to sell or mortgage is a devise of a power unless they are empowered also to collect rents, 388 to trustees on trusts not " express " confers no legal estate on them, 388, 402 trustees of express trusts take a base fee by statute, 273, 407, 409, 411, 428, 430, 441 General Index. 1073 [References are to pages.] LIMITATION OF ESTATES [RULES OF] — Continued settlors may limit future estates to take effect on determination of trust estate, 275, 411, 417 when an express trust estate is created, if there is no disposition of estate after termination of the trust, it results to settlor or his heirs, 412 concerning powers in, 4S7~SS7 the term " heirs " or other words of inheritance are no longer necessary to pass a fee, 643, 645 the intent must govern in the construction of every conveyance, 644, 646 all grantor's estate passes by " grant " or devise unless intent to pass a less is obvious, 667, 668, 673 when absolute powers of disposition are limited to those having estates for life or years the estate becomes a fee, 503-513 See Construction LINEAL WARRANTIES abolished, 681 LITTORAL PROPRIETORS rights of, discussed, 89 LIVERY OF SEISIN what it was, 20, 648, 649 abolished in New York, 20, 648 LIVES IN BEING two, are now the lawful measure of power to suspend alienation, 236, 242, 381 at common law estates may be limited to any number of, but not so now, 268, 378 LUNATICS declared incapable of transferring real property, I06, 108, 487 MANORS under the Lord Proprietor, 53 after 1685, 60 in New York, defined, 176, 179, note rents reserved in, 174, 176 some, invalid in New York, when, 179 MARRIAGE legal requirements of a, 561 when a sufficient consideration to support conveyance, 722, 725 effect of subsequent, on issue born prior to, 873, 874, 875 dissolution of, 575, 576 68 1074 General Index. [References are to pages.] MARRIAGE — Continued with aliens, 120, 121, 122 trusts on, 384 effect of, on prior contracts, 581 MARRIAGE SETTLEMENT aliens may take lands by way of, 117 by infant, 486, 487 powers of revocation in, 498 is either ante or post-nuptial, 514 may be subject to conditions, 514 when post-nuptial bars dower, 584 when valid as to Settlor's creditors, 729 consideration of, 722, 725 MARRIED WOMEN when alien may take lands by way of marriage settlement, 117 powers of, when husbands are aliens, 117, 120, 121 whose husbands are aliens, may take and hold real property, when, 104, 118, 120 history of restraint on their power of alienation, 415, 416 may execute powers^ 486, 487, 488, 489, 490, 491, 525^ 532 acts relating to, 490 conveyances by, 488, 490, 595, 782, 783, 784 trusts for, 378, 384 acknowledgments of conveyances by, 595, 596, 782 MECHANICS' LIENS effect of, on covenants by tenants to build, etc., 147 MERGER equitable interests of trustees, who are all beneficiaries, merge in legal estate, 371 certain beneficiaries, entitled to estate in remainder, may merge equitable interests, when, 418, 419 of power, in fee, 390, 469 defined, 153 when estates do not merge, 142, 153, 371 of estates for life, 140, 142 of estates for years, 142 a matter of intention, in equity, 386 of Lord Proprietor's estate in his Crown, 58 MINES of gold and silver, 74 belong to people, when, 74 General Index. 1075 [References are to pages.] MINORITY when actual minority may enter into limitations suspending power of alienation, 243, 259, 260 effect of, on transfers of real estate, io6, 107 MINORS cannot transfer real property, 106, 107 execution of powers by, 486 accumulations for destitute, may be applied, when, 324 See Infant MORTGAGES certain aliens may take back, 115, 117 by trustees, 375, 422, 428, 432 reservation of power to make, 496 power of sale in, 499 effect of, by tenant for life with powers to lease, 517 of real property, without covenant to repay loan, imply no obligation to repay, 677 where property subject to, descends to heirs or devisees, they must pay same without resort, 677 by persons out of possession, when good, 715, 718 on leases, construed, 739-74S form of, when on lease, 74S~747 remaindermen may pay interest on, 737 short form of, 512 equitable, 694 ancient, when presumed to be paid, 824 ancient, how discharged, 824 accumulations for payment of, void, 320, 321, 375 devolution of trustees' title to, 442 containing no covenants, 694, 742 of leases, discussed, 739-747 what deeds deemed to be, 820 rights of assignees of recorded, 757, 821, 828 executed at the same time have no priority, when, 758 improper satisfaction of, 758 recording satisfaction of, 822, 825 without covenant of seisin and warranty do not cover subsequently ac- quired property, 742 maker of, becomes surety when estate conveyed under contract to assume, 756 purchase money, 757, 819 satisfaction of, 822, 823, 825 satisfaction of, in cities of the first class, 825 lost, 82s, 827 lands subject to descend to whom, 841 1076 General Index. [References are to pages.] NEW YORK CITY satisfaction of mortgages in, 825 recording in, 832 duration of defective leases in, 641 NOTARIES PUBLIC may take acknowledgments, 773 acts concerning, 773 cannot act out of jurisdiction, 774 NOTES OF COMMISSIONERS OF STATUTORY REVISION ON THE REAL PROPERTY LAW on Aliens, 902-924 on Tenure, 922-923 on Creation and Division of Estates, 924-930 on Uses and Trusts, 930-936 on Powers, 936-943 on Dower, 943-946 on Landlord and Tenant, 946-949 on Conveyances and Mortgages, 949-960 on Recording Instruments Affecting Real Property, 961-970 on the Descent of Real Property, 970-974 NOTES OF THE ORIGINAL REVISERS OF THE REVISED STAT- UTES on Aliens, 987, 992 on Tenure, 987-991 on Creation and Division of Estates, 992-1006 on Uses and Trusts, 1006-1016 on Powers, 1016-1023 on Dower, 1025-1028 on Landlord and Tenant, 1028, 1029 on Conveyances and Mortgages, 1023-1025, 1038-1041 on Recording Instruments Affecting Real Property, 1035-1038 on the Descent of Real Property, 1032-1034 NOTICE effect of recorded conveyance as, 754, 755, 756 effect of actual, 756, 760 of pending action by tenant to landlord, 623 by possession, 760 extent of, 761 - to terminate tenancy at will or by sufferance, 631-639 to beneficiaries of trust on sale or lease by trustees, 432 General Index. 1077 [References are to pages.] PARTITION SUITS posthumous or after-born children, when bound by, 226, 233, 305 wife's release of dower in, 490 PARTNERS take as tenants in common, 335 in land speculations, 361 effect of taking title in name of some, 361 PATENTS construction of, 73, 75 to James, Duke of York, 43, 52, 56 from the " People of the State," 72 from the Crown, 59 effect of Independence on former, 65, 67 to aliens, effect of, 114 PAYMENT to trustees good, without the necessity of seeing to application, 434 PENALTY for using deeds with long forms of covenants, 831 PERPETUITIES rise of rule against, 25, 41, 42, 43, 237, 239, 306, 307 defined, 244, 245, 246 statement of old rule against, 41, 237, 240, 246, 249 statutory rule against, 236, 242, 243, 246, 260 former rule against, did not apply to limitations of estates subsequent to estates tail, 240 limitations of estates tending to, 238, 244, 246, 248, 249, 251 do not exist when there are persons in being who can convey a fee, 229, 256 limitations, with a double aspect, when within rule, 261 trusts did not formerly necessarily create, but do now, 247, 264 rule against, does not apply to conditions, 170, 263 powers cannot contravene rule against, 264, 468 rule against, applies to vesting of charitable uses, 453 rule against, applies to powers, 479 See Suspension of the Power of Alienation PERSONAL PROPERTY future interests in, subject to rules relating to future estate in lands, 189, 219 efifect of entails of, 188 1078 General Index. [References are to pages.] PERSONAL PROPERTY — Continued construction of bequests of, 217, 218 rule against perpetuities applicable to, 259 accumulations of, 327, note where profits of estate, undisposed of, 327 is primary fund for payment of debts, 39S, 397 what trusts of, suspend power of alienation, 379, note devolution of trustees' title to mortgages changed, 442 distribution of intestates, 843, 871 what is, for purposes of descent, 840, 841, 842 POSSESSION when adverse, 717 effect of actual, as notice, 756, 760 POSSIBILITIES descent of, 164, 310, 311, 313, 314 what are, 163, 311 are not estates, 19s double, now tolerated, 292 discussed, 311 not assignable at common law, 179, note, 313 POSSIBILITY OF REVERTER defined, 163, 313 does not " suspend power of alienation," 163 not devisable, 163 not an " estate," 163, 313 is descendible by representation, 313, 314 is not devisable, 313 is not assignable, 313 rent's reserved on estates in fee leave none, 164, note, 166, 181, 296 time limit does not affect, 170, 263 subsists on a determinable fee, 163 may be released or may nlerge, 313 assignee of, not assignee of reversion, 617 POSTHUMOUS CHILDREN could not take by way of contingent remainder at common law, 231, 304 take by descent, 304 rule that they may now take by way of contingent remainder, 304 interest on legacies to, to be calculated from birth, 305 when bound by representation in partition suits, 305 when bound by decrees, 233, 305 General Index. 1079 [References are to pages.] POWERS article on, 4S7-SS7 report of Commissioners of Statutory Revision on, 936-943 notes of original revisers of Revised Statutes on, 1016-1025 definition of, 467 are cut out of a fee, 390, 402, 467 at common law, 458, 459, .483 when limitations of, tend to perpetuities, 247, 248, 251, 264, 468, 478, 480, SSO what acts valid as, 367, 388, 468, 550 what words create, 468, 484 what can be delegated, 469 existence of power of appointment, does not prevent vesting of estates, 234 certain devises are, 388 classification and division of '"powers," 461, 462, 463, 471 powers might " overlap,'' when, 462 definition of " grantor " and " grantee " of, 470 created by deed, 480, 483, 531 created by will, 485, 531 who may take and execute, 486, 487, 488, 552 creation of, 483 reservation of, 494-496 powers as they existed before 31st December, 1829, abolished, 458 " powers " regulated for the future, 458 powers before the Statute of Uses, 458 powers after the Statute of Uses, 459 powers introduced in New York, 460 powers before the Revised Statutes, 461, 463 powers since the Revised Statutes, 463, 471 execution of, by infant, 486 who may grant, 482 how and in what instruments granted, 483, 484, 485, 658 to mortgage or charge, 496 coupled with interest, 499 to sell in a mortgage, 499 when a lien or charge on real property, 500 may be created subject to conditions precedent or subsequent, 234, 514 how extinguished, 390, 393, 466, 500, 517 when irrevocable, 501 grant of absolute, creates an estate in fee, when, 503-513 effect of mortgage by life tenant, 517 merged in a fee, 390, 402, 467, 510 of life tenant to make leases, 515 doctrine of relation, 469, 480, 551 usual, in settlements of estates, 466, 495, 496 when may subsist with a fee, 510 1080 General Index. [References are to pages.] POWERS — Continued when may subsist with a trust, 518 devolution of trust of, 405, 442, 526, 527, 533, 534 of distribution or selection, 521, 523, 524 cy pres doctrine not applicable to execution of, 469, 527, 540, S4i. 548 instrument containing, to be recorded, 544, 545 execution of, 472, 476, 480, 486, 502, 51 1, S^S. 527. 528, 53i~S54. 733 how, must be executed, 531, 533, 733 execution by survivors of several grantees of, 533 execution of, where executors refuse to qualify, 534 execution of powers to dispose by devise, 535, 546 how far prior will an execution of, 535 execution of powers to dispose by grant, 480, 483, S32, 536, 546, 734 execution of, when directions by grantor are inadequate, 537 execution of, when directions of grantor are superfluous, 538 nominal conditions may be disregarded in execution of, 539 intent of grantors to be observed in execution of, 540 when consent of third person requisite to execution of, 542 execution of, when third person dead, 542 when all persons named by grantee must consent to execution of, 543 omission to refer to grant of power in execution of, 544 execution of, not void because too extensive, 548 rights of purchasers under defective execution of, SS4 instruments in execution of, affected by fraud, 541, SSS rule against perpetuities applies to, 264, 468, 479, 550 general when power is, 471, 472, 513 defined, 472 special when power is, 471, 473 defined, 473 who may take, 491 bene£cial when power is, 471, 474, 513 defined, 474 what, now authorized, 474, 475, 476, 513 what are, 474 who may take, 491, 552 execution of, 476 defective execution of, aided, 525, 528 subject to the claims of creditors, 525, 530 pass to assignees for creditors, 530 pass to committees of persons entitled to, 530 in trust when power is, 471, 477 defined, 477 See Powers in Trust General Index. 1081 [References are to pages.] POWERS IN TRUST defined, 403, 406, 477 certain trusts are, 367, 385, 402, 403, 404, 405, 406, 467, 477, 512, 519 construction favors, 478 execution of, 520 powers of sale are, 389, 392, 403, 466 are imperative, 405, 518, 519 who may grant, 482 defective express trusts are not valid as, 404 no particular language necessary to create, 404, 484 how power may be granted, 483, 484 trustees of, cannot contravene trusts, 405 devolution of, 405, 442, 526, 527, 534, 556, 557 what trust purposes are lawful as, 405, 477, 512, 518, 519 beneficiaries of, 406, 478 judicial construction favors, 478 when general or special, 474, 480, 481 when implied, 480 how to be framed, 534 how to be construed, 541 what trusts valid as, 368, 385, 452, 477, 512, 518, 519 execution of, how enforced, 518, 520, 525, 528, 529 how extinguished, 393, 406, 466, 500, 520, 521 power to appoint to, or select, beneficiaries, 521 do not fail for want of a trustee, 520 of appointment to a class, 521, 523, 524 certain, are in the nature of remainders, 521 execution of, on death of trustee of, 526, 527 execution of, when compelled by creditors, 527 defective execution of, when aided, 529, 554 rule against perpetuities applies to, 264, 468, 479 payment to trustees of, 435 if created by will, 485 when may subsist with trust, 518 statute applicable to, 556 See Powers POWERS OF ALIENATION history of tenants', 8, 10 who may exercise, 106 restraints on, prohibited, 78, 83, 106 over expectant estates, 311 See Restraints on Alienation; Suspension of the Power of Alienation 1082 General Index. [References are to pages.] POWERS OF APPOINTMENT continue in practice, 460, 466, 495 do not prevent vesting, 234 under the Revised Statutes, 495 execution of, 511 to a class, 524 illusory, 523 to be executed equally, 523, 524 are within the rule against perpetuities or unlawful suspension of the power of alienation, 264, 468, SSO, 553 See Powers POWERS OF ATTORNEY not affected by article on powers, 458 ivhen revoked, 499, 501 must be acknowledged to be recorded, 767 to be recorded when, 749, 752, 767 revocation of, to be recorded, 830 POWERS OF DISPOSITION absolute, not inconsistent with remainder over, 215, 307, 308, 505, 506, 507 discussed, 503, 504 when absolute, 505, 513 execution of, 531, 535 POWER OF REVOCATION origin of, 459. 462, 494 effect of, 497. 498, 733 covenant not to execute, 502 instrument containing, void as against subsequent creditors, purchasers or incumbrancers of grantor, 732 instrument containing, a conveyance, 749 prior deeds when an execution of, S3S how executed, 547, 549, 553 when to be recorded, 830 POWERS OF SALE do not relieve certain trusts from rule against perpetuities, 248, note 5, 383 powers of sale considered, 388, 402 when extinguished, 390, 393, 466, 521 certain devises are, 376, 388 pass to new trustees, when, 447, 533, S34 are powers in trust, 389, 392, 403, 466 in a mortgage, 499 when personal or in trust, 533 when to be executed in a designated place and mode, 538 General Index. 1083 [References are to pages.] POWERS OF SALE — Continued are merged in a fee, 390, 402, 467 when imperative, 391 effect of, in construction of contingent remainder, 230 do not authorize mortgage, 392 mandatory, defeat creditors' application to sell lands, 395, 396 when do not prevent suspension of the power of alienation, 248, note 5, 383 executed by one of several executors, S34 POWERS TO MAKE LEASES by trustees, discussed, 428, 429, 430, 431, 493, 495 by tenant for life, 429, 515, 516 by tenants in tail, 429, 492 *by corporations, 429 not separately assignable, 493, siS in trust, 495 effect of mortgage by grantees of, 517 PRESUMPTIONS of death, when take place, 194, 272 no, of gifts to a class, 218, 332 PRIMOGENITURE origin of rule of, 17 rule of, abolished within certain degrees in New York, 68, 847, 854, 882 PROOF of conveyances, regulated, 773 of conveyances, when made in the State, 773 of conveyances, when made in the United States, 775 of conveyances, when made in foreign countries, 779 of conveyances of married women, 782, 783, 784 by subscribing witness, 786, 788 of conveyances, to be certified under seal, 790, 799, 800 where witnesses to conveyances are dead, 812, 813 of conveyances, when made in Porto Rico, 778 of conveyances, when made in Philippines, 778 of conveyances, when made in Cuba, or other province of United States, 778 PUBLIC PROPERTY how appropriated, 75 PULTENEY ESTATE acts concerning, 804, 80s 1084 General Index. [References are to pages.] PURCHASE aliens may take lands by, 103, 112 PURCHASER when " heir " takes as, 285, 298 bona Me, protected, 364, 420, 730, 732 term " purchaser '' defined, S44. 749. 752, 761 for value, defined, 761 from trustees, relieved from seeing to application of purchase money, 434 rights of, under defective execution of powers, 529, 554 must see to insertion of all covenants in conveyances, 679 fraudulent conveyances made void as to subsequent, 720-736 rights of bona fide, saved by statute against fraudulent conveyances, 730 power of revocation avoids instrument as to subsequent, 732 from trustees protected, when, 420 QUALIFIED FEE defined, 157, 158, 410, 879 See Fees QUALITY OF ESTATES defined, 135 QUANTITY OF ESTATES defined, 135 QUARANTINE widows', regulated, 599, 600 QUIT-RENTS reserved in patents, 59 account of, in New York, 67 defined, 148 commuted and extinguished, 67 Statute of Limitations runs against, 68 See Rents REAL ESTATE the term, defined for the purposes of the Recording Act, 96, 749, 752 REAL PROPERTY the term, defined by statute, 86, 96, 749, 752, 833 who may hold, 98 term, for purposes of the article on descents, defined, 835, 839 RECEIVERS may avoid fraudulent acts and deeds of their predecessors in title, 735, 736 General Index. 1085 [References are to pages.] RECORDING ACTS discussed, 750 consolidated in Article VIII, 748-834 instruments creating powers to be recorded to be effective as liens under, SOD effect of, on extinguished power, 500, 501 effect of, on powers, 501, 749 effect of, on conveyances not recorded as to subsequent purchasers, 754, 761 acknowledgment or proof of conveyance, made necessary under, 754-785 executory contracts to be recorded under, 767 letters patent to be recorded under, 768 copies of instruments in Secretary of State's office may be recorded under, 770 certified copies may be recorded under, 772 regulate record of conveyances made by parties since dead, where officer is also dead, 810 regulate books of record in public offices, 814, 815, 817, 818-832 do not affect conveyances inter partes, 761 regulate order and time of recording conveyances, 817 provide that certificates on conveyances, etc., must be recorded, 818 regulate time of recording, 819 regulate discharge of mortgages recorded, 822 discharge of mortgages in cities of first class, 825 effect of recording assignments of mortgages, 828 regulate actions to cancel certain instruments of record, 833 acknowledging officers guilty of malfeasance in office liable for damage, 834 RECORDING BOOKS regulated by law, 814, 815 order of entries in, 817 RECORDING OFFICER who is a, 749 must provide indexes of records, 815 must record conveyances in the order of their delivery, 817 must record certificates on conveyances, etc., 818 must make entries of the time of record, 819 liability of, in damages for malfeasance in office, 835 RELEASE effect of, if sealed, 661, 662 effect of, on liquidated debt if not sealed, 661, 662 RELIGIOUS USES grants and devises for, regulated, 448 what are, 450 1086 General Index. [References are to pages.] REMAINDERS what a " remainder " originally was, 22, 25, 201 rule against perpetuities no application to, before the Revised Statutes, 42, 237, 238 definition of, by statute, 201 at common law, what are, 25, 201, 311, 313 after the Statute of Uses, 202 since the Revised Statutes, 42, 202 under The Real Property Law, 203 what estates included in term, 204 nature of estates to support, 204 cross-remainders, 205, 206, 262, 271 cross, when limited after estates for life, 205. cross, when limited on estates for life to tenants in common, 205 invalid limitations of cross-remainders, 206 when, vested ; when, contingent, 209--233 some vested, not alienable, 226, 262, 263 seisin of, for purposes of " descent " of, 226 limitations of, did not formerly tend to a perpetuity, 42, 229, 237, 238 when vested, may be sold on execution, 230 when vested, open to let in, 231, 262, 263 how vesting when limited on estates that never arise, 232, 297, 310 when tend to violate rule against perpetuity, 238, 246, 248, 249, 251, 256, 261, 262, 266 on estates tail saved, 187, 188 on estates for life of third persons, 273 on estates in expectancy, 195, 196 on terms of years, 279, 282, 288 preferred in construction, 40, 198, 206, 217 which divest, 214, 227, 231, 232, 251, 260, 263 accelerated when, 268, 269, 270, 272, 277 limited on life estate, with power to life tenant to consume corpus, 215, 307 over, not inconsistent with life tenant's power to defeat, 215, 307 cessation of particular estate before vesting of, 310 merger of, when beneficiary of trust acquires, 418, 419 to persons not in being, 226, 227, 251, 260, 337 in trust after vested life estate, 386 after fees conditional and determmable, 24, note 27, lOo, 225 descendible, devisable and alienable, 228, 311, 839, 840 limited in trust, 270, 386 when they take effect, 302 alternative, 229, 250, 251, 259, 291 sale of, 337-342 to beneficiaries of' intermediate trust -estate, 20S, 275, 290, 386, 411, 417 after trust estates, 411 General Index. 1087' [References are to pages.] REMAINDERS — Continued persons entitled to, are entitled to notice of appointment of trustee, 443 certain, saved when powers of disposition unexecuted, 503, 506 certain powers of appointment are in the nature of, 512, 521 premature determination of precedent estate not to affect, 310 may be limited on a trust term to beneficiaries, 205, 27s, 290, 386, 417 not affected by certain sales of trust estates, 425 when persons entitled to, may pay interest on mortgages, 737 persons entitled to, not entitled to savings of life tenant, 737 descent of, 839, 840 REMAINDERS (CONflNGENT) defined and discussed, 209-233, 280, 281, 311 not accelerated, 268, 269, 271 when cannot be created on a long term of years, 279, 280 when must be in fee, 214, 236, 251, 260, 282 what contingencies may enter into, 22, 210, 215, 216, 228, 248, 249, 254 to persons not in being, 226, 227, 251, 252, 260 history of, 22, 23, 26 are estates in expectancy, 195, 196, 311 not bound by conveyances, when, 233 not estates at common law, 196 on term of years, regulated, 279 not defeated by cessation of particular estate before vesting of, 310 when to take effect, 302 assignee in bankruptcy does not take, 226, 231, 313 when inalienable, 230, 247, 248, 249, 306, 311 when alienable, ^28, 231, 256, 311, 313, 337 devisable, 228, 311 descendible, 228, 311, 839 how sold, 337-342 REMAINDERS (VESTED) defined and discussed, 209-233, 280 when accelerated, 268, 269 not accelerated, when, 277 when to take effect in possession, 302 are descendible, 840 history of, 22, 23, 25 on trust estates, 386 do not tend to a perpetuity, 248 how divested, 226, 230, 231, 262, 263 may be sold on execution, 230 assignee in bankruptcy takes, 226, 231 open to let in, 231, 262, 263, 338, 339 when after contingent remainders, 225, 270 1088 General Index. [References are to pages.] REMAINDERS (VESTED) —Continued when alienable, 226, 311 when inalienable, 226, 262, 263 seisin of, for purposes of descent and dower, 226 sold on execution, when, 230, 337-341 descendible, 840 RENEWAL covenants for, of leases, 145, 264 RENTS origin of, 18, 142 defined, 148, 315, 607 perpetual, reserved on grants in fee, 145, 172, 173, 174, 17s, 176, 177, 178, 179, 180, 181, 182, 4SS, 466, 618, 619 classified, 148, 315, 316, 612, 840 are incorporeal hereditaments, 137, 180, 182, 315 remedies for non-payment of, 149, 150 reserved on estates in fee, 149, 172 seq., 450, 451, 618, 619 rents due on life leases recoverable, 611 rents may be limited as estates in fee, 185 disposition of, how governed, 315 perpetual or fee-farm, 173-185 remedies for the collection of perpetual or " fee-farm," 147, 174-185 effect of "ejectment" on "perpetual," 182, 6l0, 634 presumption of payment of perpetual, 184 "perpetual," discussed, 172-182, 316, 617, 618, 619 perpetual, bound by judgments, when, 185 rent is a " tenement," when, 172, 182, 315, 316 when descendible, 840 not incident to tenure, 316 in esse are the subject of limitations of estates, 185, 315, 316, 317 when not disposed of by settlor go to persons entitled to " next eventual estate," 326 when apportioned, 184, 185, 613, 614 pass to assignee or grantee of freehold, 615, 616 assignee of rent charge, 617 discharge of record of perpetual, 184 apportionment of, 185, 613, 614 to whom they may be reserved, 607 distraint for, taken away, 612 when no right of re-entry reserved, 612 when contract to pay, not implied, 610 payment of, to mortgagee after sale of freehold, 674 covenant to pay, runs with land, 708 See Quit-Rents; Landlord and Tenant General Index. 1089 [References are to pages.] REPEAL of statutes, by The Real Property Law, 895-898 does not affect vested rights, 61, 70 RESERVATION what is a, 186 of a power, 494 distinction between reservation of estate and power, not clear, 496 to whom, unlawful, 186 on grants in fee, 186 in favor of strangers to title, 186 RESTRAINTS ON ALIENATION restraints, fines, quarter sales prohibited, 78, 83, 106 former " rules " for, 24, 41, 83, 160 by beneficiaries regulated, 413-419 of fee simple estates, 78, 83, 108, 140 of life estates, 109, 140 of estates for years, 109, 141 generally, 106, 107, 297 of fee-farm, void, 182 by married women, 399 See Suspension of Power of Alienation REVERSIONS rights of assignees of, 150 definition of, 207 alienable, devisable and descendible, 312 assignee of possibility of reverter is not an assignee of a, 617 are estates in expectancy, 196 contrasted with " future estate," 197, 200 vest, when, 208, 840 descent of, 312 on trust estates saved, 412 REVERTER See Possibility of Reverter REVISEt) STATUTES effect of the, on law of real property, 47, 48, 49, 68 on real property, now incorporated in the "The Real Property Law," chapter 46, General Laws, 47 notes of the revisers of the original on, 985-1041 for text of, see appropriate subjects in General Index took effect January i, 1830, 69 69 1090 General Index. [References are to pages.] REVISERS' NOTES new, appendix I, 899-984 old, appendix II, 985-1041 effect of, on construction, 86, 87 REVISIONS OF THE LAWS colonial, 61 by Jones &- Varick, 63, 83, 106, 151, SS9, S6o, 652, 720 in 1802, 652 in 1813, 560, 607, 652, 715 in 1829, 1830, 48, 49 General Laws, 47, 86 See Revised Statutes RIPARIAN RIGHTS discussed, 88-g6 RIVERS rights of proprietors on, go, 91, 92, 93 SALE by judicial proceedings of remainders, 337 how conducted, 340 conveyances upon, 341 disposition of proceeds of, 342 of real estate to pay debts, 394, 39s, 396, 397 SATISFACTION OF MORTGAGES how to be recorded, 822 who may enter, 822 who may execute, 822, 823 See Mortgages SEASHORE rights of proprietors bordering on, 89, 94 SEAL account of, 660, 661, 662 substitutional, allowed, 660 none required in deed or a " grant," 66a when required on certificate of acknowledgment, 800 to be affixed by corporation, when, 802 when required on certificate of authentication, 808 presumed, when, 664 effect of, on release, 661, 662 General Index. 1091 [References are to pages.] SEISIN defined, 107, 562, 839, 850 abeyance of, whether now lawful, 243, 253, note, 310, 883 at common law could not be in abeyance, 24, 25, 279, 288, 289, 310 for the purposes of dower, 226, 562 for the purposes of descent, 226, 839 livery of, abolished, 648 See Livery of Seisin SEVERALTY estates held in, defined, 329 SHELLEY'S CASE, RULE IN abolition of the rule in, 298 discussed, 298, 299, 300, 301 former application of, 299 reasons for the rule in, 300 SHORT FORMS of grants or deeds, 691 construction of grants or deeds, 688 construction of covenants in grants, 682 of mortgages, 692 construction of covenants in bonds and mortgages, 684, 690 of executors' or trustees' deed, 692 construction of covenants in executor's or trustee's deed, 689 of mortgages of leases, 745 construction of mortgages on leases, 739~74S do not affect covenants running with the land, 6go penalty for not employing, 831 STATUTES (COLONIAL) all repealed, 68, 69 STATUTES OF ENGLAND all revised, 68 all repealed, 68 re-enacted, when, 68 STATUTES AGAINST FRAUDULENT CONVEYANCES discussed, 720-736 STATUTE OF FRAUDS passed after English occupation of New York, 44 repealed and re-enacted, 68 of England, 650, 652 1092 General Index. [References are to pages.] STATUTE OF FRAUDS — Continued of the Colony, 650 present, 651 not to be an instrument of fraud, 363, 653, 659, 714 construction of, 651-659 to be pleaded, 659, 714 STATUTE, 12 CAR. II, CHAP. 24 abolished burdens of feudal tenures, 43, 79, 990, 991 STATUTE OF USES the old Statute of Uses (27 Hen. VIII, chap. 10) discussed, 27, 28, 29, 30, 31, 33. 34. 344. 346. 351, 356, 459, 461 effect of, on conveyancing, 38 re-enacted in New York, 197, 344 present Statute of Uses discussed, 346, 347, 349, 350, 351, 352, 353, 354, 355. 356, 459. 461 SUB-INFEUDATION definition of, 11 SUPREME COURT when estate in trust vests in, 440, 448 jurisdiction of, 343, 367 SURPLUS INCOME of trusts, how reached by creditors, 399-401 SURRENDER what is a, 656 of lease discussed, 624, 625, 656 by tenant, when lawful, 626-630 need not be in writing, when, 656 of estate, when must be in writing, 651 of estates discussed, 140, 142 how construed, 644 SURVIVORS limitations to, contingent, 216 rules concerning rights of, 216, 217, 218 SUSPENSION OF THE POWER OF ALIENATION present rule against, 236-267 former rule against, 24, 41, 83, 237 rise of common-law rule against, 24, 41, 239 statement of old rule against, 240, 241, 244 General Index. 1093 [References are to pages.] SUSPENSION OF THE POWER OF ALIENATION — Continued contingent limitations which violate rule against, 246 limitations of remainders did not formerly violate rule against, 41, 237, 238 limitations of contingent remainders now tend to violate rule against, 229, 230, 238 some vested remainders also may violate rule against, 226, 231 all limitations of future estates now suspending power of alienation to be measured on lives in being, 236, 242 when actual minority may be added to two lives in being, 236, 242, 243, 251, 259 none by conditions subsequent, 170, 263 covenants for perpetual renewals of leases occasion, 146, 264 why limitations in trust now cause, 247, 258, 264 what trusts now cause, 372, 377, 380, 381, 383, 384, 385 limitations of powers must not violate rule against, 264, 468, 479, 550, 551, 552, 553 by limitations of annuities, 264, 265, 374 instrument in execution of powers relates back to grant of power, 469, 480, 550, 552 no, by charge on land, 265 charitable uses must vest within rule against, 453 when not prevented, by power of sale, 248, note 5, 383 TAXES when tenant pays, 147 TENANT conventional relations, obligations and duties of, 605-642 liability of, for holding over, 635, 637, 638, 641 See Landlord and Tenant TENANT AT WILL notice to, to terminate tenancy, 631 • See Estates at Will TENANT BY CURTESY See Curtesy TENANT FOR LIFE when tenant for life may defeat remainder, 215, 307 leases by, 429, 430, 493, 494, 515, 516 power to make leases not separately assignable by, 491, 493 effect of mortgages by, 517 conveyance by, of greater interest than has, passes actual interest of, 673 entitled to savings, as against remaindermen, ^^^ See Estates for Life 1094 General Index. [References are to pages,} TENANT FOR YEARS effect of certain conveyances by, 673 See Estates for Years TENANTS IN COMMON how they hold, 329, 331, 333 every grant or devise one to, unless otherwise specified, 331 partners take as, 335 dissseisors do not hold as, 332 incidents of estate held by, 333 lessees take and hold as, 333 may have partition, 333 liability of, 333 inheritances devolve on heirs as, 885 TENANTS BY ENTIRETIES husband and wife take and hold as, 331, 333, 334, 335, S77 effect of divorce on, 334, S77 TENANCY BY SUFFERANCE notice to terminate, 631 See Estates by Sufferance TENEMENTS ; definition of, 86, 88 when rents are, 185, 315 are real property in article on descents, 83S TENURES definition of, 7 species of, 7 not wholly abolished, 69, 82 article of " The Real Property Law " on, 85-130 in New York, 67, 69, 81, 82, 134 no rents incident to, now, 316 notes of the revisers of the Revised Statutes on. Appendix II, 987-^1 TENURE BY FREE AND COMMON SOCAGE a common-law tenure, 7 reform of, 43 introduced in New York, 2, 10, 43, 52, 53, 57, 60, 81 effect of Independence of the State on, 2, 45, 46, 78 incidents of, 7, 81 notes of revisers of the Revised Statutes on. Appendix II, 987-991 abolished, 2, 15, 68, 69, 78, 80, 851 TENURE IN CHIVALRY a common-law tenure, 7 General Index. 1095 [References are to pages.] TENURE IN FRANKALMOIGNE a common-law tenure, 7 il.'d not exist in America, ,8 TERMS of the common law, 87 TERMS OF YEARS are " chattels real," 190, 286 are " estates," 141, 142, 143, 191 bound by judgments, 144, 287 limitation of remainder in, to be for whole residue of, 273, 274, 275 how created, 142 original duration of, 142, 191 rents reserved on, 148, 149 became legal estates, when, 191 trusts of, 287, 658 are " estates for years," 133, 141 permissible limitations of, 276, 286, 287, 288 restraints on alienation of, 109, 141, 143 merger of, 142 contingent remainder on, 279 estate for life may be created in, 287 remainder of freehold may be created on, 286, 2:87, 288, 289 contingent remainder of freehold could not be created on, at common law, 24, 25, 289 See Lease; Rents; Agricultural Lands; Estates for Years TIDAL CREEKS title to lands on, 89 TITLES TO LANDS chapter on, 50-70 under water, 70 through aliens, 123, 124, 125, 126, 127 sources of, 70, 80, 82 TORTIOUS ESTATES no longer created by wrong, 668, 673 TRUSTEES estate of, not always an estate pur autre vie, 273, 369, 407, 409, 411, 412, 436, 437. 438, 441 take and hold as joint .tenants, 332, 441 saving estates of, if before 1830, 350, 354 ex maleficio, 362 1096 General Index. [References are to pages.] TRUSTEES — Continued short form of deed by, 692 operation of the Statute of Uses on estate of, 350, 354, 436 of passive trusts now take no estate, 356, 357, 358 of express trusts take the legal title, 365, 368, 369, 407, 409 when they are all beneficiaries, estates merged, 371 of trusts, not " express," take no estate, 388, 402 of powers in trust cannot contravene trusts, 405 of " express trusts " take a fee, 273, 354, 405, 407, 409, 411, 428, 430, 440 of express trusts may not convey in contravention of trusts, 405, 422 may convey by order of court, when, 422, 423, 424, 425, 426 may exchange lands, when, 426 may lease lands, when, 428, 429, 430, 431, 493 leasing powers of, 428, 429, 430, 493 payment to, in good faith, sufficient without necessity of seeing to appli- cation, 434, 435 estates of, cease when, 436 estates of, do not descend, 436, 438, 440, 441, 442 resignation or removal of, 443, 444, 445, 446, 447, 556 appointment of new, regulated, 443, 444, 445, 556, 557 discharge of, 444 conveyance from outgoing, 446 compensation of outgoing, 444 action to construe trusts, by, 386 to sell, cannot mortgage, 374, 375 investments of, 427, 455 acquiescence of beneiiciaries, in breaches of trust by, 427 breaches of trust by, 427 when all must act, 447 TRUSTS IN LANDS article of the statute on, 343-456 report of Commissioners of Statutory Revision on, 930-936 notes of original revisers on, 1006-1016 origin and nature of, 12, 26, 27, 31, 32, 365, 366 originally infrequent in New York, 45, 346 for aliens, 117 when estates on, violate rule against perpetuities, 247, 258, 264, 372, 380, 381, 383 for accumulation, 318-326 for accumulation, when void, discussed, 322 uses and trusts abolished except as authorized by statute, 346 passive trusts abolished, 356 classification of, 357 implied, 358 secret, 358 General Index. 1097 [References are to pages.] TRUSTS IN LANDS — Continued resulting, when abolished, 359, 360, 361, 362, 363 purposes for which they may be created, 365-387 origin of, in English jurisprudence, 365 definition of, 369 beneficiaries of, must be definite unless for charity, 369, 383 certain, are now " express," 365, 367 seq., 452 other, are " powers in trust," 367, 402, 403, 452, 477, 519 no particular language necessary to create, 370, 372 what express trusts suspend the power of alienation, 372, 380, 381 to sell for the benefit of creditors, 365, 373, 438 for annuitants, legatees or to satisfy charges, 365, 374, 383 to receive and apply rents, 365, 376, 378 to accumulate, 365, 379 did not formerly tend to perpetuities, 379 separable, 385 what purposes are lawful, 365, 367, 405 do not fail for want of a trustee, 443, 446, 448, 452, 520 for charity, religion, education or other benevolent purposes, regulated, 347, 348, 448, 449, 450, 451. 4S2, 453 must be in writing, 651, 057 for settlors' own benefit void as to creditors, 378, 734 list of books treating of, 27, 28, note consent of beneficiary unnecessary to creation of, 372 defective express, valid as "powers," 404 authorizing beneficiaries to alienate, 416 to sell for benefit of creditors, cease when, 438 not ordinarily implied in order to be declared void, 321 certain alienations of, void when, 405, 422 to sell, do not authorize mortgage, 374, 375 precatory, 370 See Beneficiaries ; Powers in Trust. UNBORN CHILDREN bound by decree, when, 226, 233, 305, 337-342 UNDERGROUND WATERS rights in, discussed, 96 UNITED STATES citizen of, may take and hold real property, 98 condemnation by, 79 See Citizen of the United States USE AND OCCUPATION action for tenant's, lies, when, 605-610 damages for tenant's, 610 1098 General Index. [References are to pages.] USES rise of uses in English jurisprudence, 26, 27, 28, 29, 30, 31, 33, 36, 344, 360 English statute of, 27, 29, 38, 344, 351 statute of, re-enacted here, 197, 344, 351, 353 not wholly abolished, but converted into estates, 197, 346, 350 classification of, 198 executed uses confirmed as legal estates, 344 all uses now abolished, except those expressly saved, 346, 350 charitable, discussed, 347, 348 executed in possession, 350 old statute of, discussed, 27, 28, 29, 31, 32, 33, 344, 346, 351, 356, 459, 461 present statute of, 346, 350, 351, 3S6, 3S9, 46S powers in the nature of, 501 list of books treating of, 27, note, 28, note declarations of, 35s pious or religious, discussed, 448, 450 educational, discussed, 448, 450 benevolent, discussed, 448, 450 charitable, 448-454 article of the statute on, 343-455 notes of Commissioners of Statutory Revision on, 930-936 notes of original revisers on, 1006-1016 See Trusts in Lands; Statute of Uses. USES AND TRUSTS notes and report of Commissioners of Statutory Revision on, 930-936 notes of revisers of Revised Statutes on, 1006-1016 article on, 343~456 distinction between, 345 what, abolished, 346 what, saved, 365 VENDOR'S LIEN prevails over dower, 571 does not prevail over bona fide mortgagee, 757 VESTED this term defined by statute, 209 as applied to " remainders," 209 common-law usage, 210 when term became important, 210 as employed in the Revised Statutes, discussed, 211-233 construction favors vested estates, 223 some, estates contravene the rule against perpetuities, 226, 231 VESTED RIGHTS certain, saved by law, 86, 97 General Index. 1099 [References are to pages.] WARRANTIES lineal and collateral abolished, 68i WASTE damages for tenant's, pass to assignee of freehold, 615 WATERS law of, 70, 88-96 underground, 95 use of, 95 J rainfall, 96 drainage, 96 title to lands under, 70, 89 WIDOW her " quarantine," 599 may bequeath a " crop," 601 rights by Statute of Descents, 850 trust for, when void, 384 See Dower WILLS mutual, 656, 713 Statute of, discussed, 34, 38, 656 agreement for mutual, to be in writing, 656, 713 made before birth of issue, 884 WITNESS when grant requires one, 660 proof by subscribing, 786 to conveyances, how compelled to testify, 788 See Attestation ; Proof ; Recording Acts WRITTEN CONVEYANCES when first became necessary, 648, 649 when now necessary, 651 seq. See Conveyances; Grant. WRITTEN PROOFS when necessary to establish trusts, 657, 658 statute requiring, not to be an instrument of fraud, 363, 653, 659, 714 not necessary to establish trusts as against wrongdoers, 362 1100 General Index. [Reference's' are to pages.] YORK, DUKE OF ancient Proprietor of New York, 43, 52 grants to, 43, 52, 56 grants by, 57 manors created under, 53 laws of, 58 became King, 58 legal effect of his accession to Crown, 58 See Patents [whole number of pages 1 154.]