CHAPTER LXIV

OWNERSHIP OF REAL PROPERTY

THE CREATION AND DIVISION OF ESTATES

By ALEXANDER E. CROWLEY

Kinds of Estates.-Estates in real property are divided into estates of inheritance, estates for life, estates for years, estates at will, and by sufferance. The entire notion of estates in land is due to the English common law, and is unknown to any system not subject to that law. The real property law has for its object the regulation of the disposition of property in accordance with certain rules.

An estate of inheritance is termed a "fee simple," or "fee," and when not defeasible or conditional, a "fee simple absolute." Estates of inheritance and for life are termed "estates of freehold." Estates for years are "chattels real," and estates at will or by sufferance are known as "chattel interests."

There are now in New York, for instance, no fees other than fees simple. Fees tail and fees conditional at the common law have in most jurisdictions been abolished, and where they would arise they are now converted into fee simples the instant they arise. A fee simple absolute is the largest estate that it is possible for one to have in lands. It is an absolute estate in perpetuity, but, in order to create a fee, the words of inheritance, "to his heirs and assigns forever," should be used.

Estates in fee simple are either in possession or expectancy. Where the owner of the legal title is entitled to the immediate possession of the property, he is said to have an estate in possession. Where the right is postponed to a future time, it is an estate in expectancy.

Estates in expectancy are divided into: (1) future estates, and (2) reversions.

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.

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. A remainder includes all those estates 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. The term "remainder" embraces both "contingent" estates and "vested" estates, if they are in some way dependent upon precedent estates created at the same time.

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 one or more particular estates granted or devised.

Future estates are vested and contingent. They are vested when there is a person living having the immediate right to possession, and they are contingent while the persons to whom or the events on which they are limited to take effect remain uncertain.

The construction of a will will be preferred which vests the title immediately upon the testator's death. Where the testator gives his property to his children subject to the life estate of his widow, there is no contingency, but a present gift of the estate in the children. 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 time of the creation of the estates.

Under a vested remainder, the remainderman, or, if a reversion, the reversioner, has an indefeasible right to take the -property upon the termination of the life estate. Where the estate is to become vested in B upon the death of A, and, in the event of B predeceasing A, then to become vested in C, the latter would have a contingent remainder, the contingency

upon which his estate depends being the death of B, which may or may not happen before A dies.

Estates by Curtesy.-Curtesy is a legal estate enjoyed by a husband for his life in all of the real property of which his wife died seized, without having disposed of it by will. In order for the husband to take such estate, there must have been a marriage, seizin of the property by the wife, issue born alive, and the death of the wife intestate so far as the property in question is concerned. While the wife is alive. she has the absolute right to sell her property at any time, without it being necessary for her husband to join in the signing and execution of the deed. She can also dispose of her property as she sees fit by will, and she is not compelled to devise any of it to her husband. Where there are children alive, the husband, because he may have an estate by the curtesy, cannot sell the property and convey title by deed, unless the children join as parties in the execution of said deed. If any of the children are infants, an infancy proceeding would have to be brought, by which an order of the court would have to be obtained authorizing the sale of the infant's share through a special guardian appointed by the court who would join with the father in executing the deed.

Dower is the right given by law to the widow to become endowed of one-third of all the real property whereof her husband was seized of an estate of inheritance at any time during the marriage. While her husband is alive, the wife has what is known as an "inchoate right of dower," which means that she has a one-third interest in all real property which he may acquire in fee, and that he cannot dispose of any of his property unless she releases her right of dower by joining in the execution of the deed with her husband. If she fails to do so, she still has an outstanding one-third interest in the property, and upon her husband's death she could bring an action to compel the sale of the said property to satisfy her claim. Therefore, the importance of making sure, if a man is married, that his wife joins in the execution of the deed.

Upon the husband's death, his wife has what is called a "consummate right of dower," which means that she is enti

tled to have one-third of all the real property of which her husband died seized. This is irrespective of the fact of any other disposition which he may have tried to make of his property by will. However, the husband may make provision in his will for a gift to his wife in lieu of dower, and under such circumstances she will be required to decide whether she will accept the testamentary gift, or insist upon obtaining the one-third dower rights in her husband's property. Where the husband exchanges property, his wife shall not have dower in both, but she must make her election to be endowed of the property given, or of that taken in exchange, and, if her election is not evinced by the commencement of an action to recover her dower in the property given, within one year after the death of her husband, she is deemed to have elected to have taken her dower of the property received in exchange.

Where a divorce has been obtained by the husband for the misconduct of the wife, she shall not be entitled to dower. Where a divorce has been obtained by the wife on account of the misconduct of the husband, she is entitled to dower in all property owned by him, and she does not forfeit this right even though she marry again.

In respect to the number and connection of their owners, estates are divided into estates in severalty, in joint tenancy, and in common.

Estate in Common.-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.

The rule of construction is that a devise to two or more persons makes them tenants in common. A gift to A, B, and C as joint tenants and tenants in common is construed to be a tenancy in common, and not a joint tenancy.

Tenancy by the entirety can only exist where there is a valid marital relation between the grantees at the time of the conveyance. Upon the conveyance to them, the husband and the wife each become seized of one-half of the estate, and upon the death of either the survivor takes all.

Eminent Domain.-All of the foregoing is subject to the exercise of the right of eminent domain by the state, which means that when the Government decides that the property is required to make room for some great public improvement, such as parks, streets, playgrounds, and school sites, the property may be condemned and taken by the state, on the payment of a fair price to the owner.

Escheat. Where the owner of property dies seized of the same, without leaving any heirs to take, then the property escheats to the state, and it becomes the owner by operation of law.