It is now insisted that our statute has both affirmed and perpetuated this distinction.
The frame of the statute, and its language, are inconsistent with this; and the whole policy of our law which encourages the free transmissibility of property of every description is in marked hostility to it.
As above shown, "expectant future estates" as defined in the statute, do expressly include all remainders, whether vested or contingent. Not only so, the "expectant future estates," of which the article treats, are declared to be "contingent, whilst the person to whom, or the event upon which they are limited to take effect remains uncertain." And notwithstanding the uncertainty in the person who may in the future be entitled thereto, the expectancy or estate is declared to be a "remainder," and "it may be created and transferred by that name." Nothing can more clearly declare, therefore, that a remainder, which is contingent because the person to whom it is limited is uncertain, is an expectant estate. And thereupon, the statute declares, that expectant estates are descendible, devisable, and alienable.
Instead of perpetuating, this abrogates all distinctions, and gives to all expectant estates, of whatsoever description, and whether vested or contingent, and whether contingent upon an event which may never happen, or by reason of uncertainty in the person, the character or quality of alienability.
It is argued that another section of the statute restrains the effect of the first, to wit: "The absolute power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed," and such suspension for more than two lives in being shall render the future estate, which works that result, void.
These provisions were not intended, and do not operate to restrain alienation at all; they are made and intended expressly to prevent such restraint, except within brief limits.
They do not import that the contingent remainder may not be aliened, but only when contingent remainders are so limited that, for a period not authorized, an absolute fee cannot be conveyed, the future estate having this effect shall be void.
Indeed the alienation of the contingent remainder is entirely consistent with inability to convey an absolute fee. Where the successive estates are all valid, every person in being having any vested or contingent interest may often convey, and they may be entirely capable of conveying, and yet no absolute fee be conveyed. It is to prevent this, for too long a period, that the statute declares the effect of such a restraint of alienation.
These are the words, also, of the statute, "The absolute power of alienation is suspended when there is no person by whom an absolute fee in possession can be conveyed;" this is not saying that a future estate in expectancy cannot be aliened when there is no person by whom an absolute fee can be conveyed; and yet, this is the inference urged upon us.
It might as well be argued that the precedent life-estate cannot be aliened when there is no person by whom an absolute fee can be conveyed; and it is like the argument that because an estate is limited to an unborn child, such limitation, perse, imparts to the estate itself the quality of inalienability, because, until the child is born, he cannot convey. The contingency of birth may make an estate contingent, but the physical fact of inability to convey does not affect its quality. It may be a remainder in fee simple, or a term for years, or for life; their quality of alienability does not depend upon the question whether the remainder is limited to one who has legal or physical capacity to convey, but upon its essential nature. If contingent, then the statute says it is alienable, i. e., it has that character and quality.
Whether the absolute fee in land may not be so situated that the actual alienation of all present vested and contingent interests will not avail to convey an absolute fee in possession, is a totally different question, and one on which the alienability of the contingent remainders in nowise depends.
It is, of course, true that in the present case the contingent estate of no child of John Jackson could descend, or be devised; but this is not because the statute has not given to all contingent remainders the quality of being devisable, descendible and alienable, but because in the special instance before us the death of such child would defeat it. The statute is to be applied according to the nature of the contingency, and in consistency with it.
An expectant estate for life, clearly vested, is alienable, but is not descendible nor devisable in its very nature.
The statute designed to give to ail expectant estates, vested or contingent, the same character and quality in these respects. The actual ability to devise or transmit, or to convey,, and the efficiency of alienation to confer an absolute fee, it was not the purpose of the statute to declare. In the case above referred to (Lawrence v. Bayard), the chancellor declares that the statute making expectant estates alienable includes every present right or interest, either vested or contingent, which may by possibility vest in possession at a future day. The mooted question whether a mere possibility, coupled with an interest, is capable of being conveyed or assigned at law is, therefore, forever put at rest in this State. Miller v. Emans, in this court, 19 N. Y. 384, supports the alienability of remainders, though contingent. Upon this ground, if I am wholly wrong in the point first discussed, the judgments should be affirmed.
Grover, J., dissents on all points. All the judges, except Grover, agreed that the interest was alienable, whether vested or not.
House v. Jackson, 50 N. Y. 161 (1872). Under the partition deeds Edward Jackson was assigned the lot in question. His share was sold out on execution in 1857 and this title came to plaintiff. In a partition suit defendant, the widow of Edward, who died in 1863, claims dower.