COLUMBIA LAW TIMES.

VOL. VI.

JANUARY, 1893.

No. 4

HERBERT L. OSGOOD.

PROFESSOR HERBERT L. OSGOOD was born in Canton, Maine, April

9, 1855. He was fitted for college at a local academy and was graduated from Amherst in 1877. Subsequent to graduation he taught for a time in Worcester, Mass. He then devoted a year to post-graduate study at Yale and spent nearly a year abroad at the University of Berlin. In the winter of 1883, he began work as teacher of History in the Boys' High School, Brooklyn, N. Y., and remained there for six years. When the "Political Science Quarterly" was started, he began writing for it, contributing both leading articles and reviews. The studies into which he was led by this work had chiefly to do with the Social question and with American Colonial History.

In 1889 Prof. Osgood took the degree of Doctor of Philosophy in the School of Political Science, Columbia College. He then spent a year in England at work upon early American History in the Library of the British Museum and in the Public Record Office. One result of those studies was published in the Political Science Quarterly in 1891, in the form of two articles on the Political Ideas of the Puritans.

Professor Osgood's work on this magazine is noteworthy. He is prominent in that group of writers that has made the Political Science Quarterly almost the leading journal in its special field. The writings of Professor Osgood display a wide range of learning, conscientiousness to details in their bearing upon generalities, exactness, and above all a keen historical mind, capable of interpreting the records of history and of bringing out the essential historical truths they contain.

In 1890 he was appointed to the position he now holds in the School of Political Science of Columbia College, that of Adjunct Professor of History. In this position he displays the same qualities so significantly set forth in his writings, and has already proved himself an indispensable member of the teaching staff of the College. His lectures are npon Constitutional History of Europe, Constitutional History of England, Colonial History of the United States.

ESTATES IN EXPECTANCY UNDER THE NEW YORK REVISED

STATUTES.

BY LEWIS C. Grover, JR.

§ 34 1. N. Y. R. S. p. 725, reads as follows:

"§ 34. No remainder valid in its creation shall be defeated by the determination of the precedent estate, before the happening of the contingency on which the remainder is limited to take effect; but 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."

In considering the change wrought by this Section in regard to expectant estates, a short survey of the provisions of the Revised Statutes of this State, in regard to such estates, is necessary.

In Moore v. Littel, 41 New York, 66 (75), Judge Woodruff states the substances of the Revised Statutes in this particular: He says: "By the Statute (R. S.) estates as respects the time of their enjoyment, are divided into estates in possession and estates in 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 precedent estate it may be termed a remainder, and may be created and transferred by that name. 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.''

Similiar reviews are found in many other cases.

See Nicoll v. N. Y. & E.

R. R. Co., 12 N. Y., 121, 133; Hennessy v. Patterson, 85 N. Y., 91, 100; and 1. R. S., p. 725, §§ 1 to 44.

These statutory definitions are brief, clear, and remove much of the uncertainty of the common law on the subject, though as is generally the case, with a general comprehensive definition of a complex subject, unforeseen difficulties arise.

Sir Wm. Blackstone's definition of contingent remainders is the best common law one, viz.: remainders are of two kinds: "Remainders limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event." Kent, while following Fearne's division of the subject, cites and approves that of Blackstone. (4 Kent Com. 208, and note.)

Tiedeman also uses Fearne's classification but states that "it may be that the only natural and necessary division (of contingent remainders) is that given by

Blackstone into two, viz.: where the person who is to take is dubious and and where the event is uncertain." Tiedeman on Real Property § 412.

"It is not the uncertainty of enjoyment in future, but the uncertainty of the right to that enjoyment which makes the difference between a vested and contingent interest." Gerard, p. 215. See also 4 Kent, p. 206 III; and Tied., § 401, note.

This distinction is important, because if the right to the enjoyment is fixed, even though the person in whom the right is vested may not live to enjoy it, yet his interest is vested, and has all the characteristics of a vested estate.

The test, then, of contingency in a reminder is uncertainty of person or event. § 34, by its very terms, can apply only to contingent remainders, so those only will be considered.

The effect of this section can be best stated by way of illustration.

Take as an illustration of Contingent Remainders, one based upon (I) a Dubious Event, such as an estate to A until B returns from Europe; then over to C. This is not a conditional limitation, because the first estate is one upon limitation, not condition. See Tied., § 281 note 4. This is doubly contingent at common law because it is uncertain whether B will ever return from Europe, and if A died before B returns, the remainder would wholly fail, because it did not take effect on the instant of the determination of the precedent estate. “It was an inflexible rule of the common law that a remainder must vest at the moment, if not sooner vested, of the determination of the precedent estate, or else it could not vest at all." Campbell v. Rawdon, 18 N. Y., 412, 418.

How is this remainder affected by the aforesaid section? (§ 34). According to that section, it would seem that if B ever returned from Europe, the remainder would take effect even though A had previously died. Nor is this section made to apply only to events which are sure to happen, because not only are such remainders vested, but the very words of the section read "but should such contingency afterwards happen" leaving it doubtful whether it will or not. Then if A died, with B still absent, A's heirs would, under our Statutes take A's estate, liable to be defeated by B's return from Europe. And if B did ever return the remainder over would vest in C. At Common Law, the remainder would fail because there would be no particular estate to support it. A's heirs could not take because they were not named in the original grant. A's estate, at Common Law, would therefore be an uncertain estate which might last for life; therefore a life estate.

If C had died meanwhile, B living and absent, C's heirs would take his interest, whatever it might be. I R. S., 725, § 35.

If B died, without returning, the remainder would be gone, both at common law and under the Statute. The remainder is still contingent after A's death and B's continued absence because the event upon which the remainder is limited is still uncertain. (1. R. S., 725, § 13.)

The only effect of the section in this case would be to make the remainder take effect, whenever B returned, notwithstanding the previous determination of the precedent estate. It removes one of the contingencies but not the other.

(II.) An Uncertain Person.—Life estate to A, remainder to the heir of B. Here the remainder is contingent because " Nemo hæres viventis.” It cannot be determined who are heirs of B until he dies. But it vests if B dies before A and B's heirs take as heirs of A. If A died before B, at common law, the remainder would wholly fail, according to the rule of vesting above stated. (Campbell v. Rawdon, supra; Tiedeman, § 396). But section 34 prevents the failure, and whenever B dies the remainder is vested in possession, if B leaves heirs.

Campbell v. Rawdon, 18, N. Y., 412; 418, 419. See also Striker v. Mott, 28, N. Y., 82, 93.

Judge Woodruff in Sheridan v. House, 4 Abbt. Ct., Appeals Decisions, 218, has clearly stated the rules governing this state of facts. He states that the remainder is wholly contingent at common law. B's heirs cannot be ascertained until his death, and A may die before B, and the remainder therefore fail. This last result is prevented by section 34, but as there are no persons who would have an immediate right to the possession upon the determination of the precedent estate, B being still living, the remainder is contingent. (Opinion p. 224.)

If A die before B, one of B's presumptive heirs having also died leaving a child, such child will take as heir or one of the heirs of B, if it survives B. § 35 supra.

Can the interest of one of the heirs of B be sold under execution, before B's death? It is certainly alienable, devisable and descendable. 1. R. S., 725,

8 35. Gerard p. 218; 94 N. Y., 563; 85 N. Y., 91.

But can the interest of any such presumptive heir be sold under execution? If his interest is a vested remainder, liable to be defeated by a condition subsequent, it can be. Sheridan v. House, Moore v. Littel, supra. But not if it is a contingent remainder. 28, N. Y., 82; 12 N. Y., 133.

In Sheridan v. House, and in Moore v. Littel, which is the same case under a different aspect, the same judge writing the prevailing opinion in both cases. it was adjudged that a grant or devise of an estate for life to A, with remainder to his heirs, gave the heirs a vested estate, liable to be defeated by the death of any heir before A's death. They take a vested remainder liable to be defeated by the performance of a condition subsequent. They are held to take a vested estate though the persons who are to take are uncertain, one of the statute characteristics of a contingent remainder. § 13. The condition of the heirs of A in this case, A still living, is compared to that of the heirs of B, after the death of B, A still surviving. The interest of A's heirs was held liable to be taken on execution. Are not the heirs of B in the same position as heirs of A in Sheridan v. House, A and B both being living? In each case the only thing that can defeat the estate the heirs of A and B have respectively is their death before their ancestor, in which case they are not heirs. True, in the first case, of A's heirs, their remainder is vested and in the second the remainder is not vested at all under § 13, the presumptive heirs of B not having a right to the possession if A should die and his life estate determine. But § 34 keeps alive their interest, even if A dies before B, and as their interest is sure to vest if they