At common law, the benefit of such a condition in a grant of real estate could be reserved only to the grantor and his heirs. It was not considered to be a devisable interest in the grantor and the right of re-entry for a breach could not be assigned to a stranger. It was a non-assignable right and no other person than the grantor, or his heir, could take advantage of a condition which required a re-entry in order to revest the former estate. See vol. IV., Kent's Com. pp. 122, 127; Jackson v. Topping, 1 Wend. 388, 395; Goodright v. Forrester, 8 East, at p. 566. The reason, quaintly given in Lord Coke's Institutes, was that " under color thereof pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the common law forbiddeth, as men to grant before they be in possession." Coke upon Littleton, § 347. In Greenleaf's Cruise on Real Property, (vol. 1, title 13, chap. 1, § 15), the reason of the rule is thus given: " That it is a maxim of law, that nothing which lies in action, entry or re-entry, can be granted over; in order to discourage maintenance." Whatever criticisms may be made upon the reasons for the rule at common law, it must be recognized as a continuing rule of property; if not changed or done away with by the Revised Statutes. The effect of section 17 of article 1 of the State Constitution was to retain so much of the common law of England as formed the law of the colony of N. Y. on the 19th day of April, 1775; where not repugnant to our form of government, or inapplicable to our institutions, and subject to such alterations as the Legislature should from time to time make. The appellant, feeling bound to concede that the right of re-entry was not devisable at common law, claims that the Revised Statutes have altered the law, by the provision that " every estate and interest in real property descendible to heirs may be devised." 2 R. S. 57, § 2. Undoubtedly, this language of the Statute of Wills is as comprehensive as it can be to cover real interests; but we are remitted, nevertheless, to the inquiry whether, here, what the grantor had with reference to the estate she had granted amounted in law to an estate or interest in the real property and therein lies the difficulty. At common law it was only a possibility of reverter and not a reversion. 4 Kent, 370; Martin v. Strachan, 5 Term Rep. 107. Until the happening of the breach of the express condition in the deed and a revesting of the estate through re-entry, the whole title was in the grantee. Have the Revised Statutes changed the grantor's status? In chapter 1, part 2 of the Revised Statutes, upon the nature, qualities and alienation of estates in real property, article 1 of title 2 creates various estates in lands and divides them into those in possession and in expectancy.1 The latter class is again divided, first, into future estates limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination of a precedent estate; and, second, into reversions; which latter are defined to exist where the residue of an estate is left in the grantor, or his heirs, commencing in possession on the termination of a particular estate granted. By section 35 of the same article, it is also provided that " expectant estates are descendible, devisable and alienable in the same manner as estates in possession." If, therefore, there was any estate left in Mrs. Davey, upon her grant to Hughes, it was one not known to our statute on real property and all expectant estates, within which class it would have to fall, are abolished by the article, except such as are therein defined and which must be either estates limited to commence in possession at a future day, or reversions. The real interest contended for here would not satisfy the requirement of either class. The mere possibility of reverter, which was all there was in this case, could not be included within the "reversions" spoken of by the statute, within its letter or spirit. The Statute of Wills, through the use of such precise words as "every estate and interest in real property descendible to heirs," obviously, must have reference to such as are recognized by the Revised Statutes to be estates of inheritance. We would be without warrant in asserting the existence of any estate in Mrs. Davey in the premises granted to Hughes, whether at common law or under the Revised Statutes. She had an election to enter for condition broken and she could release her right to do so. To those rights her heirs, after her decease, succeeded by force of representation and not by descent. There was no estate upon which the Statute of Descents could operate; but as heirs, there devolved upon them the bundle or aggregate of the rights which resided in and survived the death of the grantor, their ancestor. Her legal personalty was continued in them. [Here follows a discussion of Nicoll v. N. Y. & E. R. R. Co., 12 N. Y. 121, and cases in 20 Barb: 455; 46 Barb. 109. 70 N Y. 312 and 106 N. Y. 287.] In a case arising in the courts of the State of New Jersey, the common-law rule in question was considered in language which I shall quote. That was the case of Southard v. The Central Railroad Company, 26 N. J. Law, at p. 21, and it was said: " If, however, the evidence had clearly established a breach of the condition, and a consequent forfeiture of the estate, the plaintiff could not have availed herself of the forfeiture. She claims, not as heir, but as devisee of the grantor. She is a privy in estate, and not a privy in blood. It is a rule of the common law, that none may take advantage of a condition in deed, but parties and privies in right and representation, as the heirs of natural persons and the successors of politic persons; and that neither privies nor assignees in law, as lords by escheat; nor in deeds, as grantees of reversions; nor privies in estate, as he to whom the remainder is limited, shall take benefit of entry or re-entry by force of a condition. Shep. Touch. 149; Co. Litt. 214a; Lit. § 347; Doct. and Student, 161, ch. 20; Perkins, § 830; 4 Kent, 127; 2 Cruise Dig. ch. 2, § 49." See, also, upon this subject, Schulenberg v. Harriman, 21 Wall. 44, and Ruch v. Rock Island, 97 U. S. 693.