In considering the effect of the grant under consideration, made since the rule in Shelley's Case was abrogated, we may seek for an anology in the example last named, to wit, a grant to A. for life with remainder to the heirs of B.
In such case the limitation over to the heirs of B. is by the com mon law wholly contingent. It is not only impossible during the life of B. to say who will be his heirs, and hence, who will be entitled to claim under the limitation, but if B. is living at the death of A., the remainder over will wholly fail, because it cannot take effect at the expiration of the precedent freehold estate upon which it is limited. This last result is now prevented by our revised statutes, 1 R. S. § 725, 34, and therefore the limitation over is operative, and whenever B. dies it will take effect for the benefit of those who may be his heirs. In such case, however, so long as B. lives, A. being also living, there can be no vested estate in remainder under our statutes, because there are no persons in being who would have an immediate right to the possession of the land upon the ceasing of the precedent estate; that is, if A. were to die to-day, it would still be uncertain who are the heirs of B., and, therefore, there is no one who under the grant is entitled to possession.
But now suppose B. dies, then the estate would vest, and for the reason that there are now persons in being, who, if A. dies to-day, will be entitled to immediate possession. Whether the estate or interest can be defeated by the death of such persons, or by any other future event or not, their interest is vested according to the very terms of our statute.
It is this precise alteration of circumstances which furnishes examples within the contemplation of our statute in its definition of a "vested future estate" and a "contingent future estate."
1. An estate is vested where there is a person in being who will take if the precedent estate then terminates.
2. An estate is contingent while the person to whom . . . it is limited is uncertain, i. e., while it is uncertain who will take if the precedent estate then terminates.
One definition is the converse of the other, and they are to be read together.
In the case supposed, then, on the death of B., A. being still alive, the heirs of B. are in a condition to take if A. should then die, and their estate is, by the terms of the statute, a future vested estate. This, in my judgment, illustrates the new case made by our statute abrogating the rule in Shelley's Case.
Thus John Jackson took a life estate; and every child of his, bearing to him such relation, that, at any moment, he would, if John Jackson then died, be entitled to immediate possession, and to hold in fee, had a "vested future estate" under our statute. It was vested, because by the death of John Jackson the precedent estate terminates, and such child, then in being, becomes eo instanti entitled to immediate possession, which is the precise character of one who in the language of our statute has a future vested estate.
This vested estate might be defeated, because such child might die before his father; but the statute has, nevertheless, made his estate a vested estate, notwithstanding the grant under which he claims has annexed a further condition which may defeat it.
In short, the statute has made this remainder, although its beneficial enjoyment depends upon the condition that he survives his father, a vested remainder liable to be defeated by a condition subsequent.
Such an estate is, in its nature, devisable, descendible and alienable. 1 R. S. 725, § 35. This is made a general rule, going much farther, and embracing all expectant estates. In this particular case, the death of the party in whom it is vested, before the termination of the precedent estate, would defeat it, but this does not change its legal character; it is still a vested estate, although death may defeat it. It is, therefore, alienable, subject to that contingency, and the deed of partition was therefore inoperative.
The question remains, could this estate, vested in interest, but liable to be defeated by the death of the person to whom it was limited, be sold under execution?
Our statutes declaring the lien of judgments, and authorizing sales by virtue of execution, apply to " land, tenements, real estate and chattels real." 2 R. S. 359, § 3; 363, § 2; 367, § 24 et seq.; 373, § 61 et seq.
If the words "lands or real estate" embrace such an estate as that in question, then it was subject to sale on execution, and the defendant acquired title, defeasible as to any share of one-eleventh, by the death of one of the eleven children of John Jackson before his decease, and actually defeated, as to the one-eleventh conveyed to Richard Jackson by his sister, Fanny Baldwin, who died before her father.
Concede that a possibility of reverter, as in 4 Den. 412, a naked possibility, as in Edwards v. Varick, 5 Id. 664, or a merely equitable interest, trustees being in possession, holding the legal title, as in Brewster v. Striker, 2 N. Y. 19; or other purely equitable interest, unaccompanied by possession, as in Sage v. Cartwright, 9 Id. 49, or a contingent remainder, as in Striker v. Mott, 28 Id. 82, cannot be sold on execution. This is far short of holding that a vested estate in remainder, only liable to be defeated by a subsequent event, may not be.
The subject of sale here was an estate in the land, a legal estate, vested in interest by the very terms of the statute, and alienable by the owner thereof; this is "real estate," and by such name is subject to levy and sale.
For these reasons, I think the judgment of the Supreme Court must be reversed.
The appellant appears, by the pleadings, to claim but ten-elevenths of the premises, and seems to concede that the death of Fanny Baldwin defeated her title to one-eleventh of the premises. This is clearly so at law; and it is not claimed that there are any equities arising out of the partition deeds which inure to the benefit of the defendant to make her purchase effectual as to that one-eleventh.