manner as if living at the death of their parent. (1 R. S. 725, § 30.) On the same principle, a future estate depending on the contingency of the death of a person without heirs or issue, shall be defeated by the birth of a posthumous child of such person capable of taking by descent. (Id. § 31.) Thus, for these purposes, and there are other cases where the same rule applies, an infant in ventre sa mere, is considered as in actual existence.

It was a well settled principle of the common law that a remainder might be defeated by destroying or determining the particular estate upon which it depended before the happening of the contingency whereby it became vested. A different rule prevailed with regard to an executory devise. A limitation thus created by will received the full protection of law, and could not be prevented from taking effect by any means whatever. It was the policy of the legislature at the revision to put all expectant estates upon the same footing; and thus give the same stability to a contingent remainder, as to an executory devise or to a secondary use. It was a principle of the common law that a future interest capable of taking effect as a contingent remainder, should never take effect as an executory devise. (Wolf v. Van Nostrand, 2 Comst. 442.) By reducing all expectant estates to the same class, it was supposed that litigation would be diminished, and it would no longer become necessary to determine whether a particular disposition of property was a contingent remainder, an executory devise or a secondary use. (See Revisers' Notes, 3 R. S. 577, 2d ed.)

These objects were sought to be accomplished by declaring that no expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseisin, forfeiture, surrender, merger or otherwise. (1 R. S. 725, § 32.) It was supposed that this provision would render unnecessary the machinery by which the skillful conveyancer could preserve the contingent remainders from being defeated by the destruction of the particular estate, by any means, either accidental or designed. (Vanderheyden v. Crandall, 2 Denio, 16.) It in effect put all expectant estates upon the same footing. But it was necessary to provide that that section should not be construed to prevent an expectant estate from being defeated in any manner or by any means which the party creating the estate should, in the creation of it, have provided for or

authorized; nor should it be adjudged void in its creation because thus liable to be defeated. (Id. § 33.)

It has been before said that a remainder at common law was liable to be defeated by the determination of the precedent estate, before the happening of the contingency on which it was limited to take effect. This rule is abolished. But if the contingency afterwards happens, the remainder is allowed to take effect in the same manner and to the same extent as if the precedent estate had continued to the same period. (1 R. S. 725, § 34.) Formerly, if an estate were given to A. for life, with the remainder to the heirs of B., if A. died during the life of B. the remainder was destroyed. This was obviated by vesting the estate in trustees to preserve the contingent remainders. Under the rule established by the revised statutes, it will be unnecessary to create a trust, but the object of the party creating the estate is accomplished by direct means. Indeed such a trust cannot now be created.

The right of alienation is incident to the absolute ownership of estates in possession. It it on this principle that conditions in restraint of alienation are void as repugnant to the estate granted. (De Peyster v. Michael, 2 Seld. 497. 1 Inst. 223 a. Co. Litt. Id.) The same principle is applicable to expectant estates, embracing vested and contingent remainders as well as reversions. As they are the subject of ownership, so they should be of the various modes of transfer by which property is made to circulate. They are descendible, devisable and alienable, in the same manner as estates in possession. (1 R. S. 725, § 35.)

There was, at common law, a class of remainders hitherto unnoticed, namely, cross remainders. They were of a complex character and grounded upon a tenancy in common. They might be raised under deeds at common law, limitations of use, and limitations by devise. They could not arise without express limitations in deeds, for the reason that words of inheritance could not be implied in deeds. In wills and marriage articles they frequently arose by implication. The estate implied must always be an estate tail, and therefore if the words would not admit of the implication of that estate, cross remainders could not arise. (Whart. Conv. 115.) They seem not adapted to our system, in which that species of estate does. not exist. They are not mentioned in our statute relative to the creation and division of estates, and the same statute enacts that all expectant estates, except such as are enumerated and defined in that

article, are abolished. (1 R. S. 726, § 42.) They probably form no part of our jurisprudence by that name.

Analogous to a contingent remainder, and supplementary to it, the law recognized a future estate by the name of an executory devise. This was defined to be strictly such a limitation of a future estate or interest in lands or chattels as the law admitted in the case of wills, though contrary to the rules of limitation in conveyances at common law. It differed from a remainder in three material particulars. 1. It did not need the support of a particular estate. 2. A fee simple or other less estate might be limited after a fee simple. 3. A remainder might be limited of a chattel interest after a particular estate for life created in the same. (2 Black. Com. 173.) We have already anticipated all that need be said upon this subject. We have seen that the revised statutes enable the party to create the same future estate by deed or grant, that could be before created only by will. In short, they have placed all the various kinds of future estates upon the same footing; thus placing, in a great measure, contingent remainders in the same category with executory devises. (See post, part 3, ch. 9, § 6.)

SECTION III.

Of Reversions.

The estates in expectancy hitherto considered in this chapter, are such as are created by the act of the parties. They owe their origin either to some form of conveyance inter vivos, or to a devise contained in a last will and testament. We come now to an estate which cannot be created by deed or other assurance, but arises from construction of law. From a collation of the definition of this estate in the elementary books, the revised statutes have adopted the following, as a brief and accurate description of the estate, viz: It 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. (1 R. S. 743, § 12.) It is founded on the principle that when a person has not parted with his whole estate and interest in a piece of land, all that which he has not given away remains in him; and the possession of it reverts or returns to him upon the determination of the preceding estate. In such a case the residue of the estate always continues in him who made the particular estate, or those who succeed to his rights. And

8

Coke says the law termeth a reversion to be expectant upon the particular estate; because the donor or lessor, or their heirs, after every determination of any particular estate doth expect or look for, to enjoy the lands or tenements again. (Co. Litt. 183 b. Payn v. Beal, 4 Denio, 411.)

A person is said to be entitled to, not seised of an estate in reversion. Yet an estate in reversion is a vested interest. The party entitled to it has a fixed right of future enjoyment. It is vested in presenti, though to take effect in possession and enjoyment in futuro. It may be aliened or changed. (Cruise's Dig. tit. 17, § 13.) Like all other expectant estates, it is descendible, devisable and alienable, in the same manner as estates in possession. (1 R. S. 725, § 35.) The conveyance of a reversion did not require livery of seisin. It would pass by a grant; though it is said that in England the most usual mode of conveyance of an estate in reversion is by lease and release, and bargain and sale. (2 Preston on Abstracts, 85.) Both these modes of conveyance are valid in this state, being deemed grants; which latter is the mode of conveyance adopted by the revised statutes for the assurance of the titles of estates in fee and freehold interests. (1 R. S. 738, § 157; Id. 739, § 162.)

An estate in reversion may lose its denomination and qualities by becoming an estate in possession; which may be accomplished by the surrender, merger, forfeiture or actual determination of the prior estate. (2 Preston on Abst. 84.) The surrender of an estate for years will not extinguish the rent previously due, whatever effect it may have upon the remedy to collect what had previously accrued. While rent was distrainable, it was held that a surrender of the demised premises after a distress made for rent due, would not render the distress unlawful. (Nichols v. Bailey, 2 Comst. 283.)

The usual incidents to an estate of reversion are said to be fealty and rent. In this state fealty no longer exists, and rent when it has been reserved out of the particular estate is so far an incident of the reversion, whether absolutely or by way of mortgage, as entitles the grantee to the rents which subsequently accrue. (Demarest v. Willard, 8 Cowen, 206. Burden v. Thayer, 3 Metc. 76.)

Although the rent is incident to the reversion, it is not inseparably incident. A grant of the reversion excepting the rent will pass the reversion alone, and leave to the grantor the rent. So the rent may be assigned without the reversion. (Demarest v. Willard, supra. Co. Litt. 143 a.) But the assignment or grant of the rever

sion without qualifying words, will carry with it the rent also. Co. Litt. 151.)

(Id.

An estate in reversion expectant on a freehold, is neither subject to dower or curtesy; but it is said by Lord Coke that a reversion expectant in an estate for years is subject to both. (Co. Litt. 29 a, 32 a. Cruise's Dig. tit. 5, § 23; tit. 6, § 8.) The seisin of the reversioner is not so affected by an estate for years as to prevent the existence of curtesy or dower.

A reversioner has such an interest in the estate that he can maintain an action for an injury to the inheritance. By statute the person seised of an estate in remainder or reversion, may maintain an action of waste or trespass for any injury done to the inheritance, notwithstanding any intervening estate for life or years. (1 R. S. 750, § 8.) A reversioner or remainderman may also be admitted to defend as a party to suits against the tenant of the particular estate. (2 id. 339, §§ 1, 2.) And no recovery unduly had against the tenant of the particular estate can bar the right of the reversioner or remainderman to restitution. (Id. 340, §§ 6, 7.)

CHAPTER VII.

OF ESTATES WITH RESPECT TO A SEVERAL AND JOINT OWNERSHIP.

An estate which is owned by a single individual, whether male or female, and whether a natural person or a corporation, is said to be held in severalty. This applies to estates of any quantity of interest or length of duration, and whether the estate be in possession or expectancy. This is the usual way of holding real property; and, therefore, the general rules with respect to estates, when nothing appears to the contrary, is supposed to have reference to estates in severalty. But it often happens that the title to real property is vested either by descent or purchase in more individuals than one; and this gives rise to the doctrine of joint estates. At common law there were three kinds of joint estates, namely, coparcenary, joint tenancy and tenancy in common.