I. 2.]

1 These were treated as vested, but defeasible as the tenant-in-tail might bar the remainder by proper proceedings. The chance that he might do this was regarded as a condition subsequent. See Gray's Rule Against Perpetuities, § III. See for the treatment of such remainders under the N. Y. Statute, 22, R. P. L. - Ed.

2 See § 31, N. Y. R. P. L., and § 112, Gray's Rule Against Perpetuities. - Ed. 3. The term " freehold " is used here, as often, to denote the present estate in possession whether tor life or in fee. - Ed.

(4.) Where the Event Which Forms the Natural Termination of the Precedent Estate Would Also (Should it Happen Now) Give a Person in-Being the Qualification Necessary to Enable Him to Take, is the Remainder Vested or Contingent?

In re Jackson's Deed.

4 Keyes (N. Y.) 569; 41 New York, 66; 50 New York, 161.1

In 1832 Samuel Jackson conveyed certain lands to his son, John Jackson, "for and during his natural life, and after his decease to his heirs and their assigns forever.' John then had thirteen children. One of them died prior to 1844 and in that year John executed a deed conveying to his twelve children all his right, title and interest in the said property. One of those children died intestate, unmarried, without issue prior to 1848, and in that year John Jackson and his wife executed another deed, whereby they ''granted, bargained, sold, released, conveyed and confirmed" the same land, with all their right, title, interest, etc., to his then eleven surviving children. In 1848 these eleven children undertook to partition this land among themselves by sets of partition deeds some of which were made in that year and some in 1849. In 1861 John Jackson died, one of the eleven children having died before him, leaving an infant child. After the death of John the children, ignoring their partition deeds, effected a new partition by action.

Sheridan v. House, 4 Abb. Ct. App. Dec. 218; 4 Keyes, 569. (1868). Richard Jackson, a son of John had received a certain parcel of the land by one of the partition deeds in 1849. In 1856 the sheriff sold this parcel on a judgment against Richard and the purchaser sold to House. In the action for partition after John's death these premises were again set off to Richard, and on execution against him were sold to Sheridan. This is a case submitted without action, to determine as to which, if either, has the title to this parcel of land.

The decision below was for the plaintiffs. Defendant appeals.

This court agreed that under our statute the rule in Shelley's Case could not apply and that the deed from John Jackson carried only his life estate.

Grovf.r, J., held the remainder contingent and that it could vest in no one until the death of John, by which event his heirs would be ascertained, and the remainder vest; that such an interest not a legal estate and could not under the statutes be sold on execution; that Richard's share of the life estate is all that passed under the first execution sale. He holds, however, that under the covenants in the partition deeds the shares in this parcel of nine of the children passed by estoppel to Richard on the death of John and so inure to defendant; that the estoppel is not binding on the infant child of Fanny, and that since said child was a party to the partition suit its interest in this parcel passed to Richard under the judgment in partition and to the plaintiff under the second execution sale. This would give plaintiff two-elevenths and defendant nine-elevenths.

1 Also Jackson v. Sheridan, 50 N. Y. 660; Jackson v. Little, 56 N. Y. 108; House v. McCormick, 57 N.. Y. 310. - Ed.

Woodruff, J. - * * * Nor is it questioned that by the conveyance of John Jackson to his children, they acquired, as tenants in common, each an estate for his life in one undivided eleventh part of the land, and that the limitation in remainder gave them as his heirs presumptive, an estate, interest or expectation, which, at his death, they still being alive, would become in them severally an absolute fee.

If that estate, expectation or interest was alienable, then the deed of partition executed by the eleven children operated to place Richard Jackson, one of their number, in the same relation to the lots assigned and conveyed to him in severalty, in which he was before that deed, to the undivided one-eleventh of the whole property; that is to say, he held an estate for the life of John Jackson in the lots so allotted and conveyed to him in severalty, and he would be entitled to the fee of each one-eleventh part thereof, provided, in respect to each eleventh, the grantor thereof should survive John Jackson. * * *

On the other hand, if the several grantors in that deed had no estate or interest in the land which was alienable, it conveyed nothing, and considering that deed simply as a conveyance, the defendant here has no estate in the lots, because the estate which she claims was derived from a conveyance to her, or to her grantor, before the death of John Jackson. Whether that deed operated as an estoppel, so as to assure to Richard Jackson the fee, when in fact the grantors did survive John Jackson, and thus assured to her the title which they had proposed to convey, I shall not consider.

I prefer to rest my conclusions upon the answer which should be given to the question whether the children of John Jackson had, before his decease, an alienable interest or estate in the premises and by this to test the effect of the partition deed and the validity of the defendant's title. And in my opinion the consideration of this question will also determine whether, if alienable, the interest or estate of Richard was subject to levy and sale upon execution against his property.

The circumstances of the present title would not at the common law have presented the question. The abrogation of the rule in Shelley's Case has created a state of things which at the common law could not exist; thus by the common law under the rule in Shelley's Case, a grant to A. for life, with remainder to his heirs, gave to A. a fee; no question under the law of remainders could therefore arise under such a grant. And that is the case now before us in which Samuel Jackson conveyed to John Jackson for life with remainder to his heirs. On the other hand, a grant to A. for life with remainder to the heirs of B. did present a case to which the law of remainders was, of course, applicable.