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REAL PROPERTY LAW.

CONSOLIDATORS' NOTES TO TEXT OF
REAL PROPERTY LAW.

1. Sec. 2. This amendment proposed restores the usage of the Revised Statutes which confined the definition of this section to the matter contained in the first eight articles. Observe that Art. 9 of this chapter (Sec. 240, new Sec. 290) contains its own definitions, slightly at variance with that in Sec. 2. Therefore the definition of Sec. 2 is not, as it now stands, correct.

The nor" in the second part of the section is not grammatical.

2. Sec. 15. The section should be made more clearly futuritive in operation, as was originally intended by the revisers.

3. Sec. 39. The amendment of this section conforms to the revisers' intention, which failed of expression.

4. Sec. 42. The authors of the General Laws unfortunately changed the Revised Statutes. By their transpositions and omissions of the provisions of the statutes, future estates only were made void when in conflict with the rule. A trust estate, in the case of an executed trust, is always a present estate, and not a future estate, and although it may offend against the spirit of the rule against perpetuities there is no provision now on the statute books avoiding it. Subdivision 2 (old 1 R. S. 723, Sec. 15) controlled it formerly. But the revisers of the General Laws, in their revision of the statutes, failed to incorporate this subdivision. The profession has been anxiously expecting some case which would involve this omission. The courts would possibly rectify it by a violent assumption, deciding that no change in the Revised Statutes was intended.

It is suggested that this omission might be corrected by restoring the provisions of the Revised Statutes and inserting the following:

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SUSPENSION OF POWER OF ALIENATION.

"1. Every future estate which shall suspend the absolute power of alienation for a longer period than is prescribed in this article shall be void in its creation. Such power of alienation is suspended, when there are no persons in being, by whom an absolute fee in possession can be conveyed.

"2. The absolute power of alienation, shall not be 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 subdivision.

"3. 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 the first remainder is limited, shall die under the age of twenty-one years, or upon any other contingency, by which the estate of such persons may be determined before they attain their full age.

"4. For the purposes of this section, a minority is deemed a part of a life, and not an absolute term equal to the possible duration of such minority."

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5. Sec. 42 The rule against rerpetuities, expressed in this section has been lately held, since L. 1903, ch. 701, to have no further application to charitable uses: Allen v. Stevens, 161 N. Y. 122; Matter of Griffen, 167 N. Y. 71, 81. This being so, it should be so plainly stated in a statute consolidating the laws relating to charities. At common law, charitable, or public, uses were not subject to the rule against perpetuities, except as to the time of vesting in possession, which could not be postponed beyond the legal limit. Marsden on Perpetuities, 24, 295; Challis on Real Property, 157. This was a wise exception recognized in this state, and it should be continued. Rose v. Rose, 4 Abb. Ct. App. Dec. 108. The phrase except as to the time of vesting in possession" is the technical one employed, in the law relating to charitable uses, to express that such uses must vest within the time limit prescribed by the rule against perpetuities.

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It is suggested that this exception might be stated by inserting the following:

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'But this section does not apply to the uses mentioned in sections one hundred and thirteen, one hundred and fourteen and one hundred and fifteen of this chapter, except as to the time of vesting in possession."

6. Sects. 67, 70, 107, 116. These sections require that every person in being, having an estate, vested or contingent, in reversion or remainder, in the real property in question, shall either be served with notice or shall execute a conveyance. These sections cannot, in the minds of experienced conveyancers, be safely applied in the large class of cases in which the remainder goes to the heirs of a living person. In such a case, the heirs, of course, are not ascertainable at the time when the proceeding is taken and may include collateral relatives to the remotest degree. It seems, that in such cases it should be enough to regard the heirs presumptive as representing the remainder. In many cases these useful sections cannot be resorted to owing to the impossibility of bringing in all of the possible heirs of a living person.

The sections should also be made applicable to remainders "which open to let in," even though not classed as contingent remainders.

7. Sec. 91. The language of the Revised Statutes is much more exact. As Sec. 91 now stands, it contains two principal errors: Uses and trusts were sub modo abolished by 1 R. S. 727, Sec. 45. But 1 R. S. 727, Sec. 45, was repealed by L. 1896, Ch. 547, Sec. 300, so that as the law now stands, there is no plain enactment abrogating the old law of uses and trusts, as it stood before 1829. It seems very clear that uses and trusts, except as authorized and modified by our present article on Uses and Trusts, should be directly abolished by a plain enactment, present in point of time, but futuritive in action. There is no need to refer the abolition back to 1829. Uses and trusts, between 1829 and 1896, depend on the Revised Statutes, and even uses executed by that statute are abundantly protected without any special reference in the present "Real Property Law."

The language of the Revised Statutes, concerning estates and interests in lands, regarded as "legal rights cognizable in the courts of law," should also be restored. The present language of the section seems to imply a class of legal rights not cognizable in the courts, which is impossible, under the established maxim: "ubi jus ibi remedium." Its literal effect is also to abolish equitable rights in real property.

In their desire not to recognize courts of law, as contradistinguished from courts of equity, the late revisers ignored the fact, that the reform of 1846 was the fusion, and not the abolition, of courts of law and courts of equity, and that in this state a legal right is still cognizable in a court of law only. Equitable rights over real property are still recognized and protected. They should not be turned into legal rights as was unintentionally done by the late revisers in this section. Equitable rights are fixed and protected by the Constitution of the State, and the Legislature is. powerless to turn them into legal rights without an amendment to the Constitution. The language of the Revised Statutes is, therefore, still relevant to present conditions and should be restored: Gould v. Cayuga County Bank, 86 N. Y. 75, 83; Peter v. Delaplaine, 49 N. Y. 362, 370; Chipman v. Montgomery, 63 N. Y. 221, 230; Town of Mentz v. Cook, 108 N. Y. 504; Corscadden v. Haswell, 88 App. Div. 158; Gilbert v. Brunell, 92 App. Div. 284.

The following is suggested in place of the section now in the statute: "Uses and trusts, except as authorized and modified in this article, are abolished; and every estate and interest in lands, shall be deemed a legal right, cognizable as such in the courts of law, except when otherwise provided in this chapter."

8. Sec. 96. After 1830 and prior to 1893 it is well known that the trustee of a charitable use or trust in this state was only the trustee of a power and the legal title passed to heirs or devisees, subject to the power which overrode the legal estate. The reason for this was, that charitable uses were, after forty-three years of fierce litigation, held to be within the purview of the article of the Revised Statutes relating to uses and trusts, and the section on express trusts did not class charitable uses as express trusts. So they must, where tolerated, be classed as powers in trust."

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Now that charitable uses are again permitted by L. 1893, Ch. 701, repeated in Sec. 113 of this act (which act, the courts also hold, relieves charitable uses from the operation of our rule against perpetuities, except as to the time of vesting in possession) there is no reason why charitable uses and trusts, when to be performed by natural persons, should not be declared to be express trusts, so that the trustee may take and hold the legal title to real property within the limits allowed by law.

These amendments enable the courts to deal with the trustees of charitable uses without the necessity of making the heirs and devisees of the donor, or a person holding the naked title, parties to a judicial proceeding in which they no longer have any interest.

The reform proposed by this amendment is orderly, but in no way affects legal or equitable rights of any person, and there need be no hesitancy on that score in adopting it.

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There is now no real difference between the trustees of an express trust and the trustee of a power in trust," except the sometimes inconvenient one in respect to his legal title.

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