TITLE 2. [722] Enumera tion of estates in land. TITLE II. Of the Nature and Qualities of Estates in Real Property, and the Alienation thereof. ART. 1.-Of the creation and division of estates. ART. 2.-Of uses and trusts. [Supplementary Article. ART. 24.—Acts relating to trusts of real and personal property.] ART. 3.-Of powers. ART. 4. Of alienation by deed. ARTICLE FIRST. OF THE CREATION AND DIVISION OF ESTATES. SEC. 1. Enumeration of estates in land. 2. Estates of inheritance, a fee simple, when a fee simple absolute. 3 & 4. Estates tail abolished and to be fees simple; remainders thereon, when valid. 5. What to be estates of freehold, chattels real and chattel interests. 6. Estates for life of third person, when freehold, when chattels real. 7. Division of estates into those in possession and those in expectancy 8. Definition of those estates respectively. 9. Enumeration of estates in expectancy. 10. Definition of a future estate. 11. When a future estate is a remainder. 12. Definition of a reversion. 13. When future estates are vested, when contingent. 14. Certain future estates void; when power of alienation deemed suspended. 15. How long power of alienation may be suspended. 16. In certain case a contingent remainder in fee may be created. 17. Limitation of successive estates for life. 18. Remainders upon estates for life of third person. 19. When remainder to take effect, if estate be for life of more than two persons. 20. Contingent remainder on a term for years. 21. Estates for life, as remainders, on a term for years. 22. Meaning of "heirs" and "issue" in certain remainders. 23. Limitations herein prescribed, to apply to chattel interests in lands. 24. Remainders, future and contingent estates, how created. 25. Two or more future estates, in the alternative, may be created. 26. Future estates not to be void on ground of improbability, etc. 27. Remainder upon a contingency; its effect. 28. Heirs of a tenant for life, when to take as purchasers. 29. Construction of certain remainders. 30 & 31. In what cases posthumous children to take, or defeat, future estates. 32. Expectant estates not to be defeated by owners of precedent estate, etc. 33. But such estates may be defeated by means provided by the grantor. 34. Remainder not to be defeated by termination of precedent estate. 35. Expectant estates descendible, devisable and alienable. 36. Limitations on the disposition of future profits of lands. 37. Accumulations of profits of land, how and for whom may be directed. 38. Other directions for accumulation, when void in part, when wholly void. 39. When profits, etc., may be applied to education, etc., of infants. 40. To whom rents and profits of lands, in certain cases to belong. 41. What deemed the time of creation of expectant estates. 42. Expectant estates not herein enumerated, abolished. 43. Nature, etc., of estates in severalty, joint tenancy and in common. 44. What to be deemed estates in common, what in joint tenancy. SECTION 1. Estates in lands are divided into estates of inheritance, estates for life, estates for years, and estates at will and by sufferance. 53 N. Y., 199; 43 N. Y., 465; 41 N. Y., 66; 11 N. Y., 494; 8 N. Y., 52; 26 Barb., 210; 22 Barb., 402; 31 N. Y., 9; 21 Hun, 251; 11 Daly, 94; 37 Hun, 14; 41 Hun, 186. ART. 1. What es § 2. Every estate of inheritance, notwithstanding the abolition of tenures, shall continue to be termed a fee simple, or fee; and every tate a fee such estate, when not defeasible or conditional, shall be termed a fee simple. 28 Barb., simple absolute, or an absolute fee. 339; 1 Barb., 576; 49 Barb., 56; 6 T. & C., 556. abolished. ture de cared. § 3. All estates tail are abolished; and every estate which would Estates tail be adjudged a fee tail, according to the law of this state, as it existed Their na 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. 410, 421; 2 N. Y., 357, 387; 5 DeHun, 475; N. Y., 511. mainders nio, 46; 12 Johns. R., 176; 3 Barb., 247; 1 Barb., 565; 66 Barb., 452; 22 Hun, 428; 31 [1 R. L., 52, §1.] 32 Hun, 434; 99 § 4. Where a remainder in fee shall be limited upon any estate, Certain rewhich would be adjudged a fee tail, according to the law of this valid. state, as it existed previous to the time mentioned in the last section, 2 Denio, 9, such remainder shall be valid as a contingent limitation upon a fee, 336; 92 and shall vest in possession, on the death of the first taker, without 456; 99 issue living at the time of such death. 5 Denio, 35; N. Y., 446, chattels § 5. Estates of inheritance and for life, shall continue to be de- Freeholds; nominated estates of freehold; estates for years, shall be chattels real; chatreal; and estates at will or by sufferance shall be chattel interests, ests. but shall not be liable as such to sale on executions. 228; 11 N. Y., 498; 8 N. Y., 52; 25 Barb., 108; 17 Barb, 396; 12 Barb, 481; 11 Barb., 499; tel inter 52 Barb., Estate for life of third § 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 person of the grantee or devisee, but after his death it shall be deemed a hold, &c. chattel real. when free 3 Hill, 442; 5 Denio; 514; 37 Hun, 13. § 7. Estates, as respects the time of their enjoyment, are divided In possesinto estates in possession, and estates in expectancy. sion or ex. pectancy. 1 Sandf. Ch., 342; 40 Barb., 495; 49 id., 56; 4 Lans., 505; 40 Hun, 451. (723] Definition § 8. An estate in possession, is where the owner has an immediate right to the possession of the land. An estate in expectancy, is of those where the right to the possession is postponed to a future period. § 9. Estates in expectancy are divided into, 1. Estates commencing at a future day, denominated future es- estates in tates: and 2. Reversions. 495; 49 Barb., expect. 6 N. Y., 360; estates. 469; 2 Abb. Ct. App. Dec., 178; 6 T. & C., 556; 4 Hun, 291; 11 N. Y., 121; 49 Barb., 56; 68 Ń. Y., 227; 12 Hun, 604; 15 W. D., 148; 97 N. Y., 449, 471; 84 § 10. A future estate, is an estate limited to commence in posses- Future sion at a future day, either without the intervention of a precedent 8 Bosw estate, or on the determination, by lapse of time or otherwise, of a Y, 360; 31 precedent estate, created at the same time. 480; 6 N. Barb., 562; 40 Barb. 495; 11 N.Y., 121; 2 Abb. Ct. App. Dec, 178; 4 Lans., 505; 28 Hun, 603; 40 Hun, 357, 449; 97 N.Y.,449. § 11. 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. 31 Barb., 562; 5 Paige, 466; 40 Barb., 495; 4 Lans., 505; 68 N. Y., 227; 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 B3 N. Y., the determination of a particular estate granted or devised. 121; 4 2 Abb. Ct. App. Dec., 178. TITLE 2. § 13. Future estates are either vested or contingent. They are Vested and 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 Lans.,366, intermediate or precedent estate. They are contingent, whilst the 4 N. Y. SC. person to whom, or the event upon which they are limited to take R.(T&C.), effect, remains uncertain. contingent future estates. 8Bosw.,480; 82; 18 N. Y., 418; 6 N. Y., 360; 31 Barb., 562; 28 Barb., 367; 5 Barb., 101; 2 Barb., 248; 40 Barb., 496; 47 Void future estates. Suspend ing power of alienation. How long it may be §14. Every future estate shall be void in its creation, which shall suspend 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. 4 N. Y. S. C. R. (T. & C.), 82; 1 Lans., 364; 47 Barb., 307; 47 How. Pr. R., 328; 9 N. Y., 403; 6 N. Y., 467; 5 N. Y., 413; 31 Barb.. 336; 30 Barb., 321; 10 Barb., 388; 9 Barb. 344; 8 Barb., 28; 7 Barb., 592; 5 Barb., 101; 4 Barb., 89; 3 Barb., 244; 1 Denio, 57; 26 Wend., 21, 236; 24 Wend., 661; 20 Wend., 564; 18 Wend., 257; 16 Wena., 61, 324; 14 Wend., 265; 9 Paige, 110, 521; 8 Paige, 106, 303, 485; 7 Paige, 230, 534; 5 Paige, 172, 318, 602; 4 Paige, 342; 4 Sandf. S. C., 539; 33 N. Y., 599; 47 Barb., 307; 4 Hun, 291; 31 N. Y., 574; 15 Abb. N. C., 299; 4 Redf., 278; 28 Hun, 573; 32 Hun, 189; 89 N. Y., 225; 92 N. Y, 539; 96 N. Y., 201; 98 N. Y., 330. § 15. The absolute power of alienation, shall not be suspended suspended. 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 in the single case mentioned in the next section. Contingent in fee. 3 N. Y. S. 4 N. Y. S. C. R. (T. & C.), 82; 3 id.. 197; 43 N. Y., 374, 382; 41 N. Y., 334; 29 N. Y., 39, 71; 24 N. Y., 9, 12; 59 Barb., 78; 52 Barb., 611; 47 Barb., 260, 307; 1 Lans, 364; 9 N. Y., 403; 6 N. Y., 467, 510; 7 N. Y., 548; 5 N. Y, 413; 31 Barb., 336; 17 Barb., 25; 10 Barb., 388; 9 Barb., 344; 8 Barb., 20; 7 Barb., 592; 5 Barb., 438; 16 Wend., 61; 14 Wend., 265; 13 Wend. 441; 5 Denio, 646; 1 Denio, 449; 5 Paige, 220; 4 Sandf. Ch., 414, 525, 528; 2 Sandf. Ch., 56; 2 Duer, 57; 5 Sandf. S. C., 174, 363; 4 Sandf. S. C., 539; 34 N. Y., 609; 31 N. Y., 19; 47 Barb., 307; 42 Barb., 166; 1 Hun, 71; 1 Tuck., 79; 53 N. Y., 192, 198; 1 T. & C., 388; 56 N, Y., 220; 53 N. Y., 192; 6 Hun, 49; 49 How. Pr., 229; 45 How. Pr., 160; 59 N. Y., 426; 64 N. Y., 651; 4 Abb. N. C., 268; 67 N. Y., 348; 52 How. Pr., 1; 53 id., 436; 11 Hun, 245; 70 N Y., 615; 51 How. Pr., 276; 14 Hun, 520; 70 N. Y., 512; 11 Hun, 147; 3 Redf., 235; 8 Abb. Ń. C., 102; 8 Daly, 454; 64 N Y., 566; 16 Hun, 268; 64 N. Y., 566; 72 N. Y., 376; 22 W. D., 805; 23 W. D., 466, 563; 2 Dem., 446; 25 Hun, 6; 28 Hun, 603; 29 Hun, 20; 32 Hun, 184; 37 Hun, 19; 41 Hun, 345; 80 N. Y., 320; 95 N. Y., 588; 96 N. Y., 20; 97 N. Y., 26, 421, 460; 98 N. Y., 311, 460, 568; 99 N. Y., 505; 102 N. Y., 161; 104 N. Y., 45; 105 N. Y., 68; 43 Hun, 501; 45 Hun, 590; 24 W. D, 35; 4 N. Y. St. Rep., 670; 18 Ább. N. C., 282. remainder § 16. A contingent remainder in fee, may be created on a prior remainder in fee, to take effect in the event that the persons to whom C. R. (T. & the first remainder is limited, shall die under the age of twenty-one Barb., 233; years, or upon any other contingency, by which the estate of such Ch., 178; 42 persons may be determined before they attain their full age. C.), 197; 26 1 Sandf. Barb., 166; 43 N. Y., 374; 1 Hun, 71; 29 Hun, 20, 28; 96 N. Y., 216; 97 N. Y., 35. of succes for life. 36 N. Y., 543; 47 Limitation § 17. Successive estates for life shall not be limited, unless to persive estates sons 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. Barb., 307; [724] 41 N. Y., 347; 9 N. Y., 403; 8 Barb., 538; 7 Barb., 241; 6 Barb., 502; 16 Wend., 324; 42 Barb., 166; 92 N. Y., 446. Remainder upon cer- of tain estates for life. 47 Barb., 307; 24 N. § 18. No remainder shall be created upon an estate for the life 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. ᎪᎡᎢ. 1. mainder to § 19. When a remainder shall be created upon any such life estate, and more than two persons shall be named, as the persons during When rewhose lives the life estate shall continue, the remainder shall take take effect effect upon the death of the two persons first named, in the same manner as if no other lives had been introduced. in certain cases. remainder 47 Barb., 308; 46 Barb., 307; 1 Bradf., 137; 15 Abb. N. C., 299; 28 Hun, 603; 98 N. Ý., 330. 20. A contingent remainder shall not be created on a term of Contingent years, unless the nature of the contingency on which it is limited, be on a term 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. for years. of estates 24 N. Y., 9, § 21. No estate for life, shall be limited as a remainder on a term Remainder of years, except to a person in being, at the creation of such estate. for life. §22. Where a remamder shall be limited to take effect on the 15 death of any person without heirs, or heirs of his body, or without is Meaning of issue, the words "heirs " or " issue," shall be construed to mean heirs and or issue, living at the death of the person named as ancestor. "issue" in certain remainders. 2 Robt., 401; 13 N. Y., 273; 3 Barb., 387; 3 Wend., 521; 3 Paige, 30; 27 How. Pr. R., 279; 16 Hun, 71; 17 Hun,215. tions on Limita chattels 3 Barb.Ch., Denio, 652; 3 Paige, 30. ers future tingent how § 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 freehold estates, so that the absolute ownership of a term real. of years, shall not be suspended for a longer period than the abso- 305;8 lute power of alienation can be suspended, in respect to a fee. § 24. Subject to the rules established in the preceding sections of Remaind this article, a freehold estate as well as a chattel real, may be cre- and conated; to commence at a future day; an estate for life may be created, estates, in a term of years, and a remainder limited thereon; a remainder of a freehold or chattel real, either contingent or vested, may be cre- 3 Barb., ated 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. § 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, more the next in succession shall be substituted for it, and take effect estates. accordingly. created. 387; 7 Paige, 534; 449, 452; 92 40 Hun, N. Y., 539, 549; 97 N. Y.,449. Two or future 40 Barb., 495; 43 N. Y., 378; 2 Abb. Ct. App. Dec., 178; 2 Dem., 433. future § 26. No future estate, otherwise valid, shall be void on the ground Certain of the probability or improbability of the contingency on which it is limited to take effect. estates not to be void. 5 Paige, 463. [725] upon a con 227; 70 N. § 27. A remainder may be limited on a contingency, which, in case it should happen, will operate to abridge or determine the precedent Remainder estate; and every such remainder shall be construed a conditional tingency. limitation, and shall have the same effect as such limitation would 68 N. Y., have by law. Y., 581; 16 Hun, 71; 17 Hun, 215; 40 Hun, 449. 28. Where a remainder shall be limited to the heirs, or heirs of Heirs of a 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 purchasers, by virtue of the remainder so limited to them. Abolishing Rute in Shelley's case. tenant for life, when to take as pur chasers. 401; 4 Kent 11 N. Y., Com., 224; 40 Barb., 495. § 29. When a remainder on an estate for life, or for years, shall Construcnot be limited on a contingency defeating or avoiding such prece- tion of TITLE 2. certain re mainders. 4 Kent Com., 224. Posthu mous chil dren. 2 Barb.,248. Id. 2 Barb.,248. Expectant estates not to be de dent estate, it shall be construed 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. § 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 parents. § 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. §32. No expectant estate can be defeated or barred by any alienation, or other act of the owner of the intermediate or precedent 41 N. Y., 78; estate, nor by any destruction of such precedent estate by disseisin, forfeiture, surrender, merger or otherwise. feated, &c. 15 W. D., 148; 28 Hun, When to be Lans., 275; 130; 100 N. Y., 310. § 33. The last preceding section shall not be construed to prevent an expectant 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 provided for or authorized; nor shall an expectant estate thus liable to be defeated, be on that ground adjudged void in 10 Hun, 328. its creation. 6 N. Y. S. C.R. (T.& C.), 602; 4 Remain ders not to in certain cases. § 34. No remainder, valid in its creation, shall be defeated by the be defeated determination of the precedent estate, before the happening of the contingency on which the remainder is limited to take effect; but 418; 4 Abb. 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. 18 N. Y., Ct. App. Dec., 224; 59 N. Y. 119; 73 N. Y., 230; 100 N. Y., 310. Qualities of § 35. Expectant estates are descendible, devisable and alienable, expectant in the same manner as estates in possession. estates. 6 N. Y. S. C. R. (T. & C.), 556; 49 Barb., 54; 12 N. Y., 133; 31 Barb., 562; 7 Paige, 76; 45 Barb., 469; 59 Barbour, 84; 8 Bosw., 480; 2 Abb. Ct. App. Dec., 182; 4 id., 226; 3 Hun, 519; 4 Hun, 408; 15 W. D., 148; 40 Hun, 357, 450; 41 Hun, 477; 96 N. Y., 213; 97 N. Y., 449; 84 N. Y., 257. Future pro fits of lands. [726] 17 N. Y., Accumula § 36. Dispositions of the rents and profits of lands, 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, in relation to future estates in lands. 3 Barb. Ch., 92; 5 Paige, 480; 4 Paige, 328; 2 Sandf. Ch., 474. § 37. An accumulation of rents and profits of real estate, for the tion of pro- benefit of one or more persons, may be directed by any will or deed, sufficient to pass real estate, as follows: fits of lands. 1 Hun, 72; 17 Barb., 25; 4 Paige, 328; 4 I. 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 442; 45 N. be made for the benefit of one or more minors then in being, and Y., 44543 terminate at the expiration of their minority; Sandf. S.C., N. Y., 374; 35 N. Y., 620; 5 4 N. Y. S. 2. If such accumulation be directed to commence at any time Lans, 167; subsequent to the creation of the estate out of which the rents and C. R. (T. & profits are to arise, it shall commence within the time in this article NY 566; permitted for the vesting of future estates and during the minority of the persons for whose benefit it is directed, and shall terminate at 3 Dem.,126; the expiration of such minority. C.), 82; 64 561; 1 Dem., 404; 26 Hun, 89; 28 Hun, 615; 29 Hun, 20, 28; 92 N. Y., 508; 95 N. Y.. 13, 403; 107 N. Y., 549. |