York, was always considered as of common soccage, and no trace can be found of any military tenure. In the act " declaring what are the rights and privileges of their Majesties' subjects, residing within their province of New York,' passed in 1691, (which may be found in Bradford's edition of the colonial laws, p. 1,) it is expressly declared, that 'all the lands within the province shall be esteemed lands of freehold and inheritance, in free and common soccage, according to the tenor of East Greenwich, in their Majesties' realm of England.'

"This act was repealed by the crown in 1697, in consequence of objections of a political nature, to some of the matters contained in it; but the accuracy of the provision above cited, does not appear to have been controverted. This shows what was then understood to be the law of the colony on this point. The grants made by the colonial government, and the acts of the assembly passed anterior to the revolution, proceed on the same principle. It is also explicitly stated by the historian, Smith, that all lands are held of the crown by soccage tenure, as those of East Greenwich, at home, in the county of Kent.' (Smith's History, Albany ed. of 1814, p. 372.)

"The foregoing observations and references render it quite certain, that the military tenures and their incidents, were never in existence in this colony; and that their abolition in 1787, was quite unnecessary. "In regard to the more burthensome incidents of soccage tenure, which are formally abolished by the act of 1787, the case stands on somewhat different ground. Prior to the act of Charles II. soccage tenures were subject to the following incidents: 1. Homage and fealty. 2. Rent and services certain. 3. Age for knighting the son, and marrying the eldest daughter. 4. Relief. 5. Primer seisin. Wardship till 14, to the nearest relative to whom the inheritance of the infant cannot descend. 7. Marriages. 8. Fines for alienation; and, 9. Escheat.

"By the act of 16 Charles II. soccage tenures were freed from aids, primer seisins, marriages, and fines for alienation. Reliefs were retained by the English acts; but are enumerated in our act of 1787, (see § 2 and 3,) and are thus declared, with the other enumerated incidents, to have been taken away and discharged, from the 30th of August, 1660. If this part of the act is correct in point of fact, it would seem that the soccage tenure, as known in this colony, was not only modified agreeably to the act of 16 Charles II. but that it was even more liberal, in its exemptions from reliefs. With the single exception of reliefs, there can be no doubt, that under the grant to the Duke of York, the soccage tenure in this colony must have stood on the same ground as in England after the act of 16 Charles II.; for the first grant to the Duke was four years after the passage of that act, and the soccage tenure of the 'manor of East-Greenwich' had already received all the modifications of that act.

"It is therefore proposed to omit the sections above quoted from the act of 1787, both as unnecessary in their original form, and as calculated to produce erroneous impressions, in regard to important historical facts. It is however deemed useful to declare the tenure by which lands shall hereafter be held in this state, both for the purposes of general information, and to remove a singular diversity which now exists in that part of our law. By the 6th section of the act of 1787,

the tenure of all lands granted by the people of this state, is to be allodial, and not feudal. By previous sections, the feudal tenure of common soccage had been declared to be the tenure of all other lands. It is well known that the greater part of our lands is now held allodially, under titles derived from the people. The nature of these different modes of title, is widely different; and if the distinction should be retained, it may give rise to inconvenient and perplexing

consequences.

"In the case of Cornell vs. Lamb, 2 Cowen, 652, it was decided that the common law right of distress incident to lands held in common soccage, was saved by the fifth section of the act of 1787; and that in all cases where the landlord is entitled to the reversion, and to a rent, he is authorized to distrain for such rent, without any authority for that purpose in the lease or contract. Justice Woodworth suggests, that independently of the 5th section, the right to distrain would remain upon every demise for a rent certain, where the reversionary interest was in the landlord; and that this right would not be impaired by the abolition of fealty, and all other services upon lands granted by the state. Chief Justice Savage excepts from this remark, lands held allodially by grant from the state; and it is apprehended with great reason. It is also extremely doubtful whether those lands are subject to guardianship in soccage, or to escheat. Indeed there would be no ground for supposing them liable to either of these incidents of tenure, were it not for the general terms used in some other statutes.

"Deeming it important that all lands in this state should be held upon an uniform tenure; and still more so, that all lands should be subject to the rent and services which have heretofore obtained among our citizens, and the rights annexed thereto by the common law; the Revisers, in 3, have made all lands allodial, and in 4, have expressly subjected them to those incidents of the soccage tenure."

"ARTICLE II.—Of the persons capable of holding and conveying lands.”

$9, adopted with some modification. Original note. "The 8th section of the act to naturalize and to prevent the avoidance of titles in certain cases, 3d vol. of Greenleaf's ed. of laws, p. 280,. confirms all subsisting titles derived from aliens, and vested in any persons who were at that time inhabitants of the state, and subsequent laws containing similar provisions have from time to time been passed. No objection is perceived to a general and prospective provision of the same character."

[S 11. Same as § 10 R. S.] Original note. "Conformable to the first part of § 1 of the act concerning tenures, (1 R. L. 70.) The residue of the original section, saving the rights of chief lords, has been omitted as unnecessary. It was taken from the first and second chapters of the statute quia emptores, 18 Edward I. To elude the restraints imposed by the feudal law upon the alienation of the fief, the practice of sub-infeudation was often resorted to, which, by dividing the fief into many parts, served to render the inferior tenant independent of the chief lord, and indirectly to effect a transfer of the fief itself. This practice was restrained by Magna Charta, ch. 32, which provides

'that no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands, the lord of the fee may have the service due to him which belongeth to the fee.' But as that provision was not sufficiently general, the statute of quia emptores extended it still farther. There seems to have been no necessity for the re-enactment of this statute in this state; the state of things which gave rise to it having never existed in the colony of New-York, and the rights of lessors and their grantees against lessees and the assignees of lessees being perfectly secured by the act to enable grantees of reversions to take advantage of the conditions to be performed by lessees.' 1 R. L. 363."

[S 12, 13. Same as § 11, 12 R. S.] Original note. "See Goodell vs. Jackson, 20 Johns. 693."

[S 20. Same as § 19 R. S.] Original note. "The 2d section of act of 1802, allows mortgages to be taken; but it is defective in omitting the right of a mortgagee to purchase, which is supplied by the latter part of the above section."

"TITLE II.-Of the nature and qualities of estates in real property, and the alienation thereof."

"ARTICLE I.-Of the creation and division of estates."

[S 2, 3, 4. Same as enacted.] Original note to § 4. "At common law, where an estate is conveyed or devised to A, and if he die without issue or without heirs of his body, or without heirs where the limitation over is to an heir, then to B in fee, A takes an estate tail, on which the limitation to B is valid as a remainder; and if the entail be not barred, the fee will vest in B, or his heirs, in case of the failure of the issue of A, at any distance of time. By the operation of our statute respecting entails, the estate of A is converted into a fee simple absolute, and thus the remainder to B and his heirs is entirely defeated. Such is obviously the necessary effect of giving to the first taker a fee simple absolute, and would also be the result of the well known rule, that a fee cannot be limited upon a fee, even by way of use or executory devise, unless upon a contingency that must happen within a life or lives in being, and twenty-one years thereafter. It is conceived, however, that the object of the legislature in abolishing entails, may be effected, without sacrificing (as certainly they are now sacrificed) the rights of the persons entitled in remainder. The object of the legislature was to destroy perpetuities, in other words, to prevent the fee from being rendered inalienable beyond a certain period; and this object is completely attained, if, without defeating the remainder, we confine it to vest within the period allowed by law in other cases; in doing this, we violate no rule of public policy, and we comply, we may be assured, with the intention of the person creating the estate.

"In most cases, it is expressed, that the limitation over shall take effect on the event of the first taker's 'dying without issue, or without leaving issue;' and in these cases, it is believed that the meaning which the law affixes to the terms, viz. a failure of issue, at any period however remote, even after the death of the first taker, is very opposite to that of the party by whom they are employed.

"It has often been remarked by judges in England and in this country, that it is not probable that testators are aware of the technical construction given by the courts to the words 'dying without issue;' and that they undoubtedly intend by them, a dying without issue, living at the death of the person named, which is supposed to be the obvious and natural meaning of the expressions.

"It is true that Chancellor Kent, in Anderson v. Jackson (16 Johns. 400), suggests, that this notion has been borrowed by one judge from another, without much reflection, or examination as to its truth;' and he gives it as his opinion, that the legal interpretation of the phrase accords with the popular understanding of its signification. The Revisers, however, are strongly inclined to the general opinion above stated.

"To them, it seems hardly credible that a person not conversant with the technical rules of law, would ever dream of the construction which those rules have affixed to the phrase. If this is so, then it follows, that the law of this state, as it now stands, gives to the first devisee, in cases of this sort, an absolute estate, contrary to the intention of the grantor or testator.

"It may be asked, even where the limitation over is plainly expectant on an estate tail, as where an estate is given to A and the issue of his body, and on the determination of such estate, then to B and his heirs, why should it be thought necessary to defeat entirely the remainder over? What reason can be given why the intentions of the party creating the estate should not be carried into effect, so far as they may be executed, without violating the rules of law? Those intentions evidently were,

"1. That the first taker should not have the power to dispose of the estate, so as to destroy the remainder; and,

"2. That in the event of his dying without descendants then living, competent to take, the remainder should vest; for this is plainly comprehended in the general intention, that the remainder should vest, upon the failure of issue, at any period, however remote. Now these intentions are clearly legal, and by giving them effect, we certainly execute, pro tanto, the wishes of the party creating the estate, and secure it to those who were the direct objects of his bounty. We do that, which we are certain the party himself would have declared, in terms, should be done, had be been acquainted with the rules of law forbidding a larger exercise of his discretion.

"The tendency of the sections that we have proposed, to prevent litigation, may be fairly stated as an additional argument in favor of their adoption. Nearly every case that has arisen in our own courts, in relation to executory devises, and other contingent limitations, has turned on the question, whether the first taker took an estate tail, or in other words, whether the remainder were dependent on an indefinite failure of issue. (1 John. R. 440; 10 do. 12; ib. 19; 11 do. 337; 16 do. 382; 18 do. 368; 20 do. 483.)

"In all these cases, the struggle of the judges to support the limitation over, by confining the failure of issue to the death of the first taker, is very manifest.

"It may be that this object is sometimes accomplished with some

disregard of former authorities, and of maxims supposed to be established; but this is only a proof how strongly it was felt, that those maxims and authorities were repugnant to common sense, and foreign to the state of society and habits of thought that now prevail. If this be so, would it not be better that the obnoxious rules should be swept away at once, by direct legislative enactment, than permit them to be slowly undermined and subverted by the subtleties of judicial interpretations, at the expense, perhaps to the ruin, of a succession of suitors, and at the hazard of plunging the whole law on the subject into endless uncertainty ?”

[S 6. Same as enacted, except that the concluding words were altered by the legislature, from "chattel interest," to "chattel real."] Original note. "In ch. 6 of the second part, as adopted by the legis lature, estates during the life of a third person, are declared, in all cases, to be assets in the hands of the executors. Hence the necessity of the preceding section, (Part 2, ch. 6, title 3, art. 1, § 6.)"

[S 7. Same as enacted.] Original note. "See note at end of Article."

[S 8. Same as enacted.] title 16, § 1.".

[S 9, 10. Same as enacted.] Article."

Original note. "Cruise's Digest, ch. 1,

[S 11, 12. Same as enacted.] Christ. ed. p. 175."

Original note. "See note at end of

Original note to § 12. "2 Bl. Com.

[S 13, 14. Same as enacted.] Original note to § 14. "See note on this and following sections, to 22, inclusive."

Original notes to the Article. "The provisions in relation to expectant estates, contained in this Article, are the result of much and attentive consideration, aided by a diligent examination of elementary writers and adjudged cases. They are submitted by the Revisers in the confident belief that their adoption will extricate this branch of the law, from the perplexity and obscurity in which it is now involved, and render a system simple, uniform and intelligible, which, in its present state, is various, complicated and abstruse.

"It will be seen by those, who are familiar with the difficult learning on this subject, that the change which the Revisers recommend, is effected, not so much by the introduction of new principles, as by the extension of rules, already admitted, but partial in their application, to all classes of expectant estates, created by the act of the party. The interests of society require that the power of the owner to fetter the alienation and suspend the ownership of an estate by future limitations, should be confined within certain limits; but where these limits are not exceeded, it would seem reasonable that the intentions of the party should always be carried into effect, whether declared by deed or devise, by a feoffment at common law, or a conveyance operating under the statute of uses.

"Such, however, is far from being the present state of the law. There are at present three classes of estates in expectancy, created by the act of the party, as distinguished from reversions, which arise by operation of law, namely, remainders, springing and secondary uses and executory devises, and each of these classes is governed by