All contingent and executory interests were assignable in equity, and would be enforced if made for a valuable consideration. 4 Kent, 269. But these words had an ascertained legal signification; and it was never claimed that they were applicable to a case like that under consideration. It will hardly be pretended that Dederer's possibility of reverter was a contingent or an executory interest, in the legal sense of these words.
By the Revised Statutes (1 R. S. 725, § 35), expectant estates are descendible, devisable and alienable, in the same manner as estates in possession; and it is claimed that Dederer had an expectant estate. But we are relieved from all doubt on this point, by the fact that the statute itself has furnished the definition of the term " expectant estates." They are described (1 R. S. 723, § 9) as including future estates and reversions; and these expressions are also defined in §§ 10 and 12. A future estate is one 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. And by § 13, a future estate is said to be vested, where there are persons in being who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate; and " contingent," whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain. A reversion is defined as 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 the particular estate granted or devised. I have been thus particular in transcribing these statutory definitions of ' expectant estates," to show, what is apparent, that they are not in the least applicable to the case under consideration.1 Though, as Chancellor Walworth said in 7 Paige, 76: "They include every present right and interest, either vested or contingent, which may by possibility vest at a future day," yet they do not include the mere possibility of a reverter, which the grantor has after he has conveyed in fee on condition subsequent. He has no present right or interest whatever, and no more control over it than a son has in the estate of his father who is living. The provision of the Revised Statutes, by which expectant estates are made alienable, no doubt covers the same class of interests which, before, were only assignable in equity. They are now assignable at law as well as in equity. Kent says (4 Com. 370), that the grantor of an estate upon condition has only a possibility of reverter and no reversion; and in the note to page 11 of the same volume he says, " there is only the possibility of reverter left in the grantor and not an actual estate," citing Martin v. Strahan, 5 Term R. 107, note. For examples illustrating the distinction between a naked possibility and a possibility coupled with an interest, see 4 Kent Com. 262, note b, and Jackson v. Waldron, 13 Wendell, 178, and Fortescue v. Satterthwaite, 1 Iredell N. C. R. 570.
Suppose A. sell to a banking corporation in fee, by express words, a lot of land on which to build a banking house. If the bank does not sell that land, but retains it till the expiration of its charter, it will revert to him, or, if he be dead, to his heirs. Now what estate had A. after he had conveyed in fee to the bank? None whatever. He had only a possibility of a reverter - a naked and very remote possibility, but nothing that he could convey to an assignee. He had sold his entire interest and received the full value of it. The presumption was it would never return. The law would not favor its return; and the grantee, who enjoyed the entire estate and upon whose volition alone it could return, would not be likely to so far neglect his own interests as to permit its return. A voluntary reconveyance would be hardly more improbable than a reverter. Just such an estate and no other had Dederer in this land when he conveyed to the plaintiff. In both cases, the estates granted were upon condition. In the case of the bank the condition was implied in law. Angell & Ames on Corp. 128. In this case, the condition was expressed.
1 Sec §§ 49, 27-30 N. Y. R. P. L. - ED.
What is meant by possibilities coupled with an interest is of a very-different character, as may be seen by reference to 4 Kent Com. 262 and cases there cited, and 13 Wend, supra. Jicklings in his treatise on the analogy between legal and equitable estates, says, that under the generic term of possibilities coupled with an interest may be classed all contingent and executory interests in land, as springing and shifting uses, contingent remainders and executory devises.
The cases cited by the plaintiff's counsel, for the purpose of showing that the common-law rule has been changed by the Revised Statutes, have no applicability. In Lawrence v. Bayard, 7 Paige, 70, the litigation was concerning personal property only, and the general remarks of the chancellor, as to the extent of the change made by the Revised Statutes, I have already quoted.
Upon the whole, my conclusion in this case is, that the Hudson and Delaware Railroad Company took from Dederer a fee upon condition subsequent, that at the time of the conveyance by Dederer to the plaintiff, there had been no forfeiture; and that Dederer had, at the time of such conveyance, no assignable interest in the premises.
The judgment of the Supreme Court should be affirmed.
151 New York, 143. - 1896.
Gray, J. - The question which this appeal presents is both interesting and important and its answer turns upon the construction to be given to the provisions of our Statute of Wills. I think, too, that there have been certain decisions made by the courts of this State upon the general question, the effect of which it would be very difficult to overlook, however much inclined we might feel to differ in our reasoning. The question is, can the plaintiff, claiming as heir-at-law of Mrs. Davey, maintain this action to recover the possession of the premises in question for the breach of the express condition in her grant; or has such a right passed under Mrs. Davey's will to her residuary legatee? The learned counsel for the appellant has argured, with ability and with force, against the plaintiff's right and the contention which he makes is that an interest remained in the grantor, which, being descendible to her heirs, was made devisable by the Revised Statutes, and, therefore, passed under her will. If it is true that the plaintiff must rest her right to enter for breach of the condition upon the descent of some estate or interest left in the grantor, then, I think, the appellant's contention is right and this action should fail. But if, on the other hand, and as argued for the respondents, the plaintiff has the right to enter, not through the operation of the law of descent, but merely representatively, as heir-at-law, and the rule at common law has not been changed by our statutes, then, I think, we will find ourselves obliged to conclude that the devisee of Mrs. Davey was incapable of possessing a right of entry and that it belonged solely to her privies in blood.