| NY | Sep 15, 1869
Lead Opinion
In. the memorandum of my conclusions in the"case of Sheridan v. House, submitted on points, in September, 1868, and which was made for the purposes of the consultation with my brethren, and not as an opinion for publication, (see 4 Keyes’ Rep., p. 569), I noted some views of the nature of the interest which under the grant from Samuel Jackson to John Jackson and his heirs, the latter had under the provisions of our statutes.
That memorandum is an imperfect exhibition of the reasons why, under those statutes, that interest is alienable, and effectually passed from the respective grontors to the grantees in the partition deeds, and without further explanation is not likely to be fully understood.
It is clear, that by the common law, as declared in Shelly’s case, the grant to John Jackson, “for and during his natural life, and after his death to his heirs and their assigns forever,” would have conveyed to him a fee.
It was not intended, in Sheridan v. House, to say that the mere abrogation of the rule, declared in that case, had the effect to vest in any persons a remainder in fee in the premises. Our statute declares that under such a grant, “ the persons who, on the termination of the life estate, shall be the heirs, * * * shall be entitled to take, as purchasers, by virtue of the remainder so limited to them.”
This phraseology, it will be presently seen, I think, harmonizes with other provisions of our statutes, and contemplates a termination of the life estate by the death of the tenant for life, and by that only; but I concede that, as a mere abrogation of the former rule, declared by the courts in England, it would leave the estate in the alternative insisted upon when under discussion before Shelly’s case was decided; that is to say: the effect of the grant would be to give to John Jackson an estate for life, with remainder to those uncertain persons who might be his heirs at his death.
And this remainder would be a contingent remainder, at the common law, because, during his life, no person could I answer that designation ; and not alone for this reason, but
Decisions and text writers agree that, by the common lawa remainder is vested, when there is a person in being who has a present capacity to take the estate in remainder, ii the particular estate be then presently determined. Otherwise, the remainder is contingent. It is said that before the remainder is vested, the person must be ascertained; and, in this sense, that is precisely true; the person must be one to whose competency to take no further or other condition attaches, &c., i. e., in respect to whom it is not necessary that any event should occur, or any condition be satisfied, save only that the precedent estate shall determine.
An illustration used, on the former occasion is apt to this, a grant to A for life, remainder to the heirs of B. ¡Now it is perfectly true that, during the life of B, the heirs of B are not ascertained, and there can be no capacity to take on the determination of the life estate until B dies. As to any person living, it is requisite that another event should happen besides the determination of the life estate, to entitle him to the possession.
On the other hand, if it were inevitably true at the present moment that an estate for life in A could not be now deter.mined without eo instanti entitling B to possession, under the grant of the remainder, could it be said even at the common law that B had not a vested remainder ?
I answer, first, that it has not been so stated nor held; and second, that whenever that condition of things exists, the remainder is held to be vested; and third, in the case of a grant of a life estate to one and of the remainder to his heirs or to the heirs of another, it is not at the common law inevitably true, while the ancestor lives, that the life estate will not be determined before such heirs can be ascertained in which event the remainder will be wholly defeated, and the heirs, when ascertained, will take nothing.
In a certain class of cases, i. e., where there was a reversion expectant upon the determination of all the precedent estates, the life estate of the first taker might become merged in the inheritance.
So, by the common law, an alienation by feoffment and livery of seizin by the tenant for life, whereby the estate in remainder or reversion is divested, operated as a forfeiture, upon feudal grounds, it being a renunciation of the feudal connection with his lord.
So under some circumstances of a disclaimer to hold of his lord.
So of attainder of treason or felony, and the consequent forfeiture.
So of a surrender to the reversioner where that is possible.
And it is obvious that the tenancy for life may itself depend upon some condition subsequent, which, although it does not destroy its legal character or incidents as a tenancy for life, may yet terminate it before the death of the tenant.
How, in all such cases (some of which have no likeness to the case now before us), it cannot be averred that a remainder man, who has no right of possession until the death of the tenant for life, would have the immediate right if the precedent estate should then terminate.
This liability of the precedent life estate to be determined before the actual decease of the tenant for life, has led to a discussion of the question whether, after a grant to one, so long as he lives or so long as he lives a natural life, and after his decease to another, does not necessarily create a contingent remainder.
I has often been stated and held on the ground that it is uncertainty in the right of enjoyment, and not the uncertainty of 1 its actual enjoyment that renders an estate contingent. And this suggests again the inquiry whether, if it be inevitably true in a given case that the determination of the life estate cannot happen without eo insianti entitling the remainder-man to possession, he has not a vested remainder, In general, the answer must and will be in the affirmative. But it is said that where the remainder is limited to the heirs of the tenant for life, there, even if you can exclude all possibility of terminating the particular estate by means other than the death of the tenant, no one can have a vested estate in remainder, because two events (in legal theory) must happen before his right is absolute, viz.: 1. The tenant must die and terminate the particular estate. 2. The tenant must die and so ascertain his heirs.
That although the single fact, to wit, the death of the tenant, accomplishes both results, and although if that death should now happen, there is a person immediately entitled to take, still, the character of heir must be gained before the remainder can vest in possession, and the remainder must vest on the instant of the death; and so in theory, the former must precede the latter.
It would be doing no violence to good sense to say that, when the same fact (the death of the tenant for life) at the same instant must determine who is heir and vest the remainder in possession, then it is true that there is at any time an ascertained person who has capacity to take if, the present estate then determines.
In such case, the test proposed by Nelson, Ch. J., in Hawley v. James (16 Wend., 137), would be apt to determine that a remainder is vested in any case in which the particular estate can only be determined by the death of the
It is not, however, in my judgment, profitable nor necessary to the view which I intended to suggest, that I should pursue the consideration of the peculiar case created by the grant now in question, if it were to be governed by the refinements of the common law, under the influence of its feudal customs, restrictions, complications, and of the ingenuity and learning sometimes employed to avoid rather than give rational effect to the intention of parties.
It was one of the objects of our Revised Statutes to reduce to greater simplicity the rules governing the taking, holding, and transmitting of real estate, and, especially, to favor the vesting of estates and the alienability thereof.
And in my judgment, the statute definition of remainders vested and contingent (in connection with other statutes, forming part of an entire system), has made the answer to some of the questions above proposed, simple and easy; and I have occupied time in the preceding discussion, chiefly that the design and meaning of the statute might be more clearly apparent.
By the statute (1 R. S., 722, chap. 1, til. 2, art. 1st), estates, in respect to their nature and duration, are divided into estates of inheritance, estates for life, estates for years, and estates at will, and by sufferance.
Estates as respects the time of their enjoyment, are divided into estates in possession, and estates m expectancy.
An estate in expectancy is where the right to the possession is postponed to a future period.
Estates in expectancy are divided into, estates commencing at a future day, denominated future estates, and reversions.
A future estate is an estate limited to commence in possession at a future day, either with or 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; and where a future estate is dependent upon a prece
Future estates are either vested or contingent.
They are “ vested where 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.”
Here, discarding all the abstruse and refined discussions and disputes, as to what constitutes an estate, and what a mere possibility or expectation (so far as material to the present inquiry), we have a series of statute definitions, under which a remainder expectant upon the determination of the statute of a tenant for life is declared to be: 1st. An “estate in expectancy.” 2d. A “future estate ; ” and it is either vested or contingent.
If there “ is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the precedent estate, then that remainder is vested” within the terms of the statute. It is not “ a person who now has a present fixed right of future possession or enjoyment,” but a person who would have an immediate right if the precedent estate were now to cease. I read this language according to. its ordinary and natural signification, and if you can point to , a human being and say as to him, “ that man or that woman, j by virtue of a grant of a remainder, would have an immediate right to the possession of certain lands if the precedent estate of another therein should now cease,” then the statute j says, he or she has a vested remainder.
It was argued on this appeal, that definitions of vested and contingent remainder in adjudged cases, and text writers have not been successfully attempted,- and that our revisors did not attempt to alter the law, or do more than describe what had already been adjudged to be vested, and what to be contingent.
Why was a remainder to the heirs of A. after the expiration of the life estate of B. contingent at the common law ? Because B might die before it was ascertained who are the heirs of A.
Why is it said that a remainder to the heirs of A., after the determination of a life estate in A. is contingent ? Because the life estate may, at the common law, be determined before j it is ascertained who are the heirs of A.
Hence the introduction, into the various definitions, of the. qualification so much insisted upon in the argument of this appeal, that no estate can vest until the person in whom it is to vest shall be ascertained; and from this it follows, if there be some condition which must be fulfilled, before the person who will take on the determination of the precedent estate is known, there can be no vested remainder.
But here suppose, that the one sole condition, to wit: The determination of the precedent estate is all that is necessary to entitle a person in esse to take, it is not denied that such person has a vested remainder. Why, then, if the precedent estate can only be determined by the death of the life tenant, and by that death the heirship is alike also determined, is not the statute definition in all respects satisfied ? It makes the precise case described, and I deny the right to interpolate qualifications drawn from the refined reasoning of cases or text-books, prior to the statute, to limit the operation of its plain terms.
How, in the case before us of an estate in John Jackson for his natural life, with remainder to his heirs, T know of nothing
He could do nothing which would extinguish the life estate by merger in the inheritance.
His alienation, or attempted alienation, by feoffment, fine and recovery, or otherwise, of a greater estate than his own, could not forfeit the life estate, or determine it, because feoffment and livery of seizin are abolished here; we have no fine and recovery; and, finally, conveyances here by a tenant for life, although in form conveying a greater estate than he possesses, do not work a forfeiture of his estate, but will pass to the grantee such estate, title and interest as he can lawfully convey. (1 R. S., 738, § 1, p. 739, §§ 143, 145.)
Whatever effect the disclaimer of his landlord’s title, by a tenant for years, in any possible form, by record or otherwise, may have have upon his rights as between him and his landlord, no disclaimer by John Jackson could operate to extinguish the life estate. (See Jackson v. Noyes, 11 J. R., 33 ; Jackson v. Vincent, 4 Wend., 633" court="N.Y. Sup. Ct." date_filed="1830-05-15" href="https://app.midpage.ai/document/jackson-ex-dem-van-schaick-v-vincent-5513422?utm_source=webapp" opinion_id="5513422">4 Wend., 633 ; 1 Washburn on Real Property, 92.)
Conviction of felony no longer works a forfeiture. (2 R. S., 701, § 22.)
And whatever was the effect of an attainder of treason in England, it is clear that here, since it is enacted that no act __ of the tenant for life, nor any destruction of the precedent estate shall defeat the remainder, no outlawry upon conviction of treason, which operates as a forfeiture during his life only (2 R. S., 656, § 3), can have any effect except as a transfer of such life estate.
Our statutes have, therefore, taken the case out of the con ,dition of a contingent remainder at the common law, and have brought it within the statute definition; and for the reason that in respect to any child of John Jackson, it was, at any and every moment of his life, inevitably and unquestion
But it has been argued that this construction of the definition of vested remainders, leaves very little room for the application of the definition of a contingent remainder, which immediately follows, and that it withdraws entirely from the test of their character, in this respect, the certainty or uncertainty of the person entitled in remainder.
So far as it can be shown that the statute, or any sensible construction thereof, tends to the holding of estates vested, rather than contingent, so far that construction is strengthened and sustained by the policy of the law, which always favored such holding. And it will be no evil in this country that those interests, which, by reason of contingencies or possibilities, are often held withdrawn from the ordinary incidents of property, are few.
But the construction given to the definition, does by no means destroy the effect of the definition of a contingent remainder.
That definition is to be construed in connection with the other; if there is no person who would have an immediate right of possession upon the ceasing of the intermediate or precedent estate, i. e., if no person can be found of whom this can now be avowed, either because if that precedent estate should now cease, it would be uncertain who was entitled, or whether the event upon which it was limited would happen; then the remainder is contingent.
This definition is a very important one in connection with another section abrogating the common law rule in another particular (§ 34), which provides that no remainder, valid in | its creation, shall be defeated by the determination of the ¡ precedent estate, before the happening of the contingency on \
blow, cases may be multiplied in which it is now true, that it is uncertain who will take, or whether any specified one will take in remainder, if the life tenant now dies. Such a remainder is still a contingent remainder, e. g., estate for life in A, remainder to the heirs of B.
The remainder is contingent, and will remain still a contingent remainder, even though A should die to-day.
So of a grant of a life estate to A, remainder to the longest liver of B and C. While both are alive, it is uncertain who will be entitled to the possession, as remainder-man, and it must remain uncertain, though the life estate should now cease.
So of a grant to A, for life, remainder to B, if he shall return to this country. While B is abroad, it is uncertain whether the event will ever happen upon which he will be entitled to the possession, and, on the present determination of the life estate, he is not so entitled.
Without enlarging further, the statute, rejecting technical expressions and phrases heretofore employed, meant by person, just what it expresses, and no more. “ When there is a person in being,” means when you can point .to a human being, man, woman or child; and, “who would have an immediate right to the possession of the lands upon the ceasing of the precedent estate,” means that if you can point to a man, womaor child who, if the. life estate should now cease, would, eo instanti et ipso facto, have an immediate right of possession, then the remainder is vested, and, by necessary consequence, all the contingencies which may operate to defeat the right of possession are to operate, and only to operate as conditions subsequent.
This view of the subject is not novel. The late Chancellor Walworth, in Lawrence v. Bayard (7 Paige, 75), expresses the like opinion. In that case, under the will of John G.
The chancellor says : “ There is no foundation for the objection. * - It was not a mere possibility, or even a' possibility coupled with an interest, but it was a vested remainder in one-fourth of the 600 shares of the hank stock, according to the statutory definition of vested remainders; for the assignor was the person in being, and ascertained who would, in 1832, have had an immediate right to the possession of such bank stock if the life estate of Mrs. Leake therein had then ceased. (1 R. S., 723, § 13.) He was the oldest son, to whom this remainder was limited, subject only to be divested by his death during the continuance of the particular estate or interest of Mrs. Leake. * I admit that the substituted remainder of his brother, Bobert, necessarily remained contingent so long as his eldest brother was living. Ho thing could defeat the right of the assignor to the bank stock, or its proceeds, as an interest in possession, if he continued to live until the life interest of Mrs. Leake terminated; and it is the present capacity of the individual to take the remainder in possession, if the particular estate should immediately determine, which vests the remainder in interest, and not the absolute certainty that such remainder will ever, in fact, become vested in possession in him.”
Obviously all that is said by the learned chancellor of the
Again, in Mead v. Mitchell, in this court in 1858 (17 N.Y., 210" court="NY" date_filed="1858-03-05" href="https://app.midpage.ai/document/mead-v--mitchell-3611240?utm_source=webapp" opinion_id="3611240">17 N. Y., 210), there was a devise of real estate to a trustee for the natural life of a niece of the testatrix (Mrs. Hudson), and after her death, in default of an appointment by her, to convey to “ such persons of the blood of such niece as would have inherited from her if it had been real estate, and she had died intestate, seized of the same.” The will then gave the niece power to appoint the rents by will to the use of her husband for life, and to appoint the estate after his death to such persons of her blood who would inherit, in case of her death, intestate, seized thereof, as she might select, and for such estates as she might think proper. A bill .was filed by a third party, who was tenant in common with these persons, for the partition of the premises in the lifetime of the niece, her husband, and her son, W. H. Hudson, and Catharine H. Robinson, a granddaughter. The last named two were the persons who, if she then died, would be heirs-at-law of her blood. On a sale in partition, the purchaser refused to take title on grounds similar to those urged in the present case, viz.: That it was wholly contingent and uncertain who would be the heirs of the niece when she should die, and therefore uncertain until then who would take the remainder in fee: That such persons might not yet be in existence, and would not be bound by the judgment and sale.
It was held that the purchaser would obtain a good title and was bound to take; and this was placed upon the ground that such contingent limitations over were made to persons not in being the latter would be bound by a decree against their virtual representative, viz., the persons having the first vested estate of inheritance; and that this was so,' notwithstanding such persons were liable to have their seizin defeated by subsequent events, and hence that the son and granddaughter having a vested remainder, though liable to be defeated, stood as the representatives of those uncertain persons who might be heirs of the niece at her death. In the opinion of the court by
The reporter states that all the judges concurred, and although it does not necessarily follow that they all concurred in the reasoning, it is certain that no dissent therefrom was expressed.
It is possible to say of each of these eases, that other grounds also existed upon which the decision could be sustained, nevertheless, it is sufficient for my present purpose to say that they are clear and distinct expressions on the precise point I have considered, in harmony with my views.
2d. If the preceding reasoning be wholly fallacious, and be deemed to give an interpretation to the statute, and a construction to the law which' is unsound, I am wholly unable to see how the result to the present appellants would be different.
The alternative insisted upon is, that since our statutes, and notwithstanding our statutes, the children of John Jackson had only contingent remainders in fee of the land, whereof they made partition, and that, therefore, they conveyed nothing by the deeds they severally executed.
Here again, the change made by our Revised Statutes is important.
A contingent remainder, it is said in the books, was aliena
It is now insisted that our statute has both affirmed and perpetuated this distinction.
The frame of the statute, and its language, are inconsistent with this; and the whole policy of our law which encourages the free transmissibility of property of every description is in marked hostility to it.
u As above shown, “ expectant future estates ” as defined in the statute, do'expressly include aB remainders, whether vested or contingent. Hot only so, the “expectant future estates,” of which the article treats, are declared to be “ contingent, whilst the person to whom, or the event upon which they are limited to take effect remains uncertain.” And notwithstanding the uncertainty in the person who may in the future be entitled thereto, the expectancy or estate is declared to be a “ remainder,” and “ it may be created and transferred by that name.” Kothing can more clearly declare, therefore, that a remainder, which is contingent because the person to whom it is limited is uncertain, is an expectant estate. And thereupon, the statute declares, that expectant estates are descendible, devisable, and alienable.
Instead of perpetuating, this abrogates all distinctions, and gives to all expectant estates, of whatsoever description, and whether vested or contingent, and whether contingent upon, an event which may never- happen, or by reason of uncer tainty in the person, the character or quality of alienability.
It is argued that another section of the statute restrains the effect of the first, to wit: “ The absolute power of alien-, ation is suspended when there are no persons in being by
These provisions were not intended, and do not operate to restrain alienation at all; they are made and intended expressly to prevent such restraint, except within brief limits.
They do not import that the contingent remainder may not be aliened, but only where contingent remainders are so limited that, for a period not authorized, an absolute fee cannot be conveyed, tire future estate having this effect shall be void.
Indeed the alienation of the contingent remainder is entirely consistent with inability to convey an absolute fee. Where the successive estates are all valid, every person in being having any vested or contingent interest may often convey, and they may be entirely capable of conveying, and yet no absolute fee be conveyed. It is to prevent this, for too long a period, that the statute declares the effect of such a restraint of alienation.
These are the words, also, of the statute, “the absolute power of alienation is suspended when there is no person by whom an absolute fee in possession can be conveyed; ” this is not saying that a future estate in expectancy cannot be aliened when there is no person by whom an absolute fee can be conveyed; and yet, this is the inference urged upon us.
It might as well be argued that the precedent life estate cannot be aliened when there is no person by whom an absolute fee can be conveyed; and it is like the argument that because an estate is limited to an unborn child, such limitation, per se, imparts to the estate itself the quality of inalienability, because, until the child is born, he cannot convey. ‘ The contingency of birth may make an estate contingent, but the physical fact of inability to convey does not affect its quality. It may be a remainder in fee simple, or a term for "years, or for life; their quality of alienability does not depend upon the question whether the remainder is limited to one who has legal or physical capacity to convey, but upon its
Whether the absolute fee in land may not be so situated that the actual alienation of all present vested and contingent interests will not avail to convey an absolute fee in possession, is a totally different question, and one on which the alien-ability of the contingent remainders in nowise depends.
It is, of course, true that in the present case the contingent estate of no child of John Jackson could descend,' or be devised; but this is not because the statute has not given to all contingent remainders the quality of being devisable, descendible and alienable, but because in the special instance before us the death of such child would defeat it. The statute is to be applied according to the nature of the contingency, and in consistency with it.
f An expectant estate for life, clearly vested, is alienable, but ; is not descendible nor devisable in its very nature.
The statute designed to give to all expectant estates, vested or contingent, the same character and quality in these respects. The actual ability to devise or transmit, or to convey, and the efficiency of alienation to confer an absolute fee, it was not the purpose of the statute to declare. In the case above referred to (Lawrence v. Bayard), the chancellor declares that the statute making expectant estates alienable includes every present right or interest, either vested or contingent, which may by possibility vest in possession at a future day. The mooted question whether a mere possibility, coupled with an interest, is capable of being conveyed or assigned at law is, therefore, forever put at rest in this State. Miller v. Emans, in this court (19 N.Y., 384" court="NY" date_filed="1859-06-05" href="https://app.midpage.ai/document/miller-v--emans-3581790?utm_source=webapp" opinion_id="3581790">19 N. Y., 384), supports the alienability of remainders, though contingent. Upon this ground, if I am wholly wrong in the point first discussed, the judgments x should be affirmed.
I think it no less clear that the deeds, given on the partition of the premises, operated by way of estoppel to give the grantees a fee in the lots conveyed, as against all the grantors who survived John Jackson. In this respect I concur fully
Whether the mortgagors can impeach their own mortgage of these separate shares, or whether, on a proper application to a court of equity, the son of Fanny Baldwin would not be confined to the particular lots set to her in the partition, if that was found to be his full equitable share, it is not necessary in these cases to consider.
The judgments should be affirmed,
Dissenting Opinion
(dissenting.) The counsel for the respondent now insists, that the defendant, deriving title from Parmenus Jackson subsequent to the mortgage given by him, under which the plaintiff makes title, is estopped from showing that title in, fee was not acquired by the foreclosure of that mortgage, and that, therefore, the plaintiff was entitled to recover the entire premises in fee as against him, irrespective of the validity of Ms title in other respects. It is true, that the defendant took the title from Jackson subject to all estoppels binding him at the time he parted with it.. The mortgage contains no covenants warranting the title. The statute (1 R. S., 739, § 141) provides that no covenant shall be implied in any conveyance of real estate, whether such conveyance contained special covenants or not. It thus appears that, there is no record evidence raising an estoppel against Jackson. Whether estopped or not, must depend upon his acts and representations as to the title at the time he gave the mortgage, and of the reliance placed thereon by the mortgagee. Ho inquiry as to these facts was gone into upon the tidal, and no claim of any estoppel upon the appellant was then made by the counsel for the respondent. That claim cannot now be successfully made in this court, unless it appears that no evidence which could have been given npon the trial would have furnished an answer thereto. The counsel for the appellant insists that the respondent’s title can derive no support , from the deed
The error in this reasoning (if any) is in assuming that the entire estate at once passed from Samuel, by virtue of his deed. True, it would have done so prior to the abolition of the rule in Shelly’s case, for then the entire estate would have vested in John, and of course nothing would have remained in Samuel; but when the statute changed the rule by providing that John should take a life estate only, the remainder of the estate remained in Samuel, unless granted by the deed to known, ascertained persons capable of taking it. The statute did not change the rule, that to make a grant effectual in passing an estate, there must be a known grantee specified in the deed, in the absence of which nothing passed, and the estate remained as before. In the present case, the remainder passed from Samuel, in case it is held that it vested in such persons as would have been the heirs of John had he died presently; and if not so held, the remainder continued in Samuel and his heirs, until, by the death of John, his heirs were ascertained. The counsel for the respondent also insists, that John Jackson, having twelve children at the time he received the deed from Samuel, who were the apparent heirs of the former, and who, by form of the statute, abolishing the rule in Shelly’s case, would, in case of the death of their father, take the estate as purchasers, must be assumed to be the persons designated by the word heirs; and that, therefore, the remainder at once vested in them. This position is sustained in part by § 13 of the statute (1 R. S., 123), and in part by the common law. So far as it rests upon the statute, it will be hereafter considered. The counsel cites a number of cases, principally arising upon wills, in which, looking at the entire contents of the will, it has been held that the testator designed, by the term heirs, to designate the class of persons who would be such, in cose the person whose heirs were designated was dead; and in those cases, the courts have held that such persons were des
Lott, Mason and Murray concurred with Woodruff and James in holding the interest of the children a vested remainder. (Hunt, Ch. J., Daniels and Grover, JJ., dissented.)
Hunt, Ch. J., James, Lott, Marvin, Murray and Woodruff, JJ., concurred in holding that the children had an alienable interest in the lands which passed by virtue of the deeds in partition and the mortgages in question. (Grover dissented.)
Judgment affirmed.