The judgment should be reversed, and judgment ordered affirming the title of the defendant to ten-elevenths and of the plaintiff to one-eleventh part of the premises in fee.

A majority of the judges concurred in this opinion.

Moore v. Littel, 41 N. Y. 66 (1869). By the partition deeds of 1848 nine of the children of John Jackson set off by warranty deed to Parmenus and Edward a certain lot. Parmenus and Edward mortgaged the premises, the mortgage was foreclosed and plaintiff became the owner in 1855. This action is ejectment against a lessee (in 1860) of one of the mortgagors. Two questions are said to arise. Had the children of John Jackson any interest in the fee of the premises, which they could convey at the time when the deeds in partition were executed and if not, are they estopped by the partition deeds?

Woodruff, J. - * * * This liability of the precedent life estate to be determined before the actual decease of the tenant for life, has led to a discussion of the question whether, after a grant to one, so long as he lives or so long as he lives a natural life, and after his decease, to another, does not necessarily create a contingent remainder.

This was the decision of the courts in New Hampshire in Hall v. Nute, 38 N. H. 422, and Hayes v. Taber, 41 N. H. 421.1 But this decision has been the subject of criticism, and cannot be said to be generally approved, while the contrary has often been stated and held on the ground that it is uncertainty in the right of enjoyment, and not the uncertainty of its actual enjoyment that renders an estate contingent.

And this suggests again the inquiry whether, if it be inevitably true in a given case that the determination of the life-estate cannot happen without eo instanti entitling the remainderman to possession, he has not a vested remainder.

In general, the answer must and will be in the affirmative. But it is said that where the remainder is limited to the heirs of the tenant for life, there, even if you can exclude all possibility of terminating the particular estate by means other than the death of the tenant, no one can have a vested estate in remainder, because two events, in legal theory, must happen before his right is absolute: 1. The tenant must die and terminate the particular estate. 2. The tenant must die and so ascertain his heirs.

That although the single fact, to wit, the death of the tenant, accomplishes both results, and although if that death should now happen, there is a person immediately entitled to take, still, the character of heir must be gained before the remainder can vest in possession, and the remainder must vest on the instant of the death; and so in theory, the former must precede the latter.

It would be doing no violence to good sense to say that, when the same fact, the death of the tenant for life, at the same instant must determine who is heir and vest the remainder in possession, then it is true that there is at any time an ascetained person who has capacity to take if the present estate then determines.2

In such case, the test proposed by Nelson, Ch. J., in Hawley v. James, 16 Wend. 137, would be apt to determine that a remainder is vested in any case in which the particular estate can only be determined by the death of the tenant for LIFE, viz., when nothing can prevent such remainder from vesting in possession but the death of the remainderman before the termination of the life estate.

1"Inexplicable aberrations of an able but eccentric court." Gray's Rule against Perpetuties, § 103, n. - Ed.

2 Relying on Chancellor Kent's assertion that the New York definition (§ 30 R. P. L.) "appears to be accurately and fully expressed," certain courts have called such a remainder as this vested on supposed common law principles. See Gray's Rule against Perpetuities, § 107 n. - Ed.

It is not, however, in my judgment, profitable or necessary to the view which I intend to suggest, that I should pursue the consideration of the peculiar case created by the grant now in question, if it were to be governed by the refinements of the common law, under the influence of its feudal customs, restrictions, complications, and of the ingenuity and learning sometimes employed to avoid rather than give rational effect to the intentions of parties.

It was one of the objects of our Revised Statutes to reduce to greater simplicity the rules governing the taking, holding, and transmitting of real estate, and, espectially, to favor the vesting of estates and the alienability thereof.

And in my judgment, the statute definition of remainders vested and contingent, in connection with other statutes, forming part of an entire system, has made the answer to some of the questions above proposed, simple and easy; and I have occupied time in the preceding discussion, chiefly that the design and meaning of the statute might be more clearly apparent. * * *

It was argued on this appeal, that definitions of vested and contingent remainders in adjudged cases, and text writers have not been successfully attempted, and that our revisors did not attempt to alter the law, or do more than describe what had already been adjudged to be vested, and what to be contingent.

In my opinion, they have defined a vested remainder in terms that do clearly avoid much of the uncertainty in which the subject was before involved, and in such terms that it is now true, that if there be a person in being of whom it can be positively averred, that if the estate for life were now to cease he would have an immediate right of possession, he has a vested remainder; and notwithstanding subsequent events may defeat it, the operation of the statute itself is to make them subsequent conditions.

Why was a remainder to the heirs of A. after the expiration of the life-estate of B. contingent at the common law? Because B. might die before it was ascertained who are the heirs of A.