Judgment affirmed.

Hennesy V. Patterson

85 New York, 91. - 1881. [Reported herein at p. 868.]1

d. Alternate remainders2

Whitesides V. Cooper

115 North Carolina, 570. - 1894. [Reported herein at p. 877.]

Waddell V. Rattew

5 Rawle (Pa.), 230. - 1835.

[Reported herein at p. - .]

Morse V. Proper

82 Georgia, 13. - 1888. [Reported herein at p. 882.]3

e. Acceleration of remainders.

Andrews, J., in

Purdy V. Hayt

92 New York, 446. - 1883.

It is provided by the seventeenth section of the article of the Revised Statutes, before referred to, that " successive estates for life shall not be limited unless to persons in being at the creation thereof; and where a remainder shall be limited on more than two successive estates for life all the life-estates subsequent to those of the two persons first entitled thereto shall be void, and upon the death of those persons the remainder shall take effect in the same manner as if no other life-estates had been created." 1 R. S. 723, § 17.1 The prohibition against the creation of more than two successive life-estates in the same property has no necessary connection with the law of perpetuities. There is no suspense of the power of alienation of land by the creation of successive life-estates therein unless they are contingent. Any number of successive vested life-estates may be created without violating the statute of perpetuities. The prohibition against creating more than two successive life-estates in the same property applies to such estates, whether vested or contingent. The policy of the prohibition, where applied to vested and therefore alienable interests, need not be considered. It is sufficient to say that it was regarded by the Legislature as not imposing an undue restraint upon the owner of property, and the provision is in harmony with the general rule prescribing the period during which the power of alienation of land may be suspended, viz., two lives in being at the creation of the estate. The statute, however, does not avoid the whole limitation where more than two successive life-estates are limited. It permits the first two to take effect, avoiding those only which are in excess of the permitted number. So also the seventeenth section preserves a remainder limited on more than two successive estates for life. But we apprehend that the section must be construed as referring to vested, and not to contingent remainders. It cannot in reason, or by its true construction, be held to apply to the latter. Where the right of the remainderman is vested, and the right of possession only is postponed, the statute, in cases of three or more precedent estates for life, accelerates the period fixed by the will or deed for the vesting of the remainder in possession, and vests it immediately upon the termination of the two estates for life first created. The statute so far overrides the precise intention of the grantor or testator, as expressed in the will or deed, but as the possession in the remainderman was postponed, presumably for the purpose of allowing an intermediate life-estate to run, and that purpose being defeated by section 17, the statute, by accelerating the remainder, gives effect as near as may be to the intention of the creator of the estate. But where the gift in remainder is upon a contingency which has not happened at the time of the death of the second life tenant, so that it cannot then be known who will be entitled in remainder according to the terms of the instrument creating the estate, the statute, we conceive, can have no application.

1 For comment on this case see Minot v. Minot, 17 App. Div. (N. Y.), 521, and Chaplin, §§ 49-51. See n. 37 Hammond's Ed. 2 Blk. Com. - Ed. 2See X. Y. R. P. L. §41. - Ed.

3 For a case in which the rule in Shelley's Case prevents an alternate remainder rom arising, see Loring v. Eliot, supra, p. 857. - Ed.

1§ 33 N. Y. R. P. L. - Ed.

The construction that section 17 applies only to vested remainders, is, moreover, sufficiently plain upon its language. The remainder, the section says, is to take effect in the same manner as if no other life-estate had been created. Where the remainder was contingent when the life-estate commenced, and remains so at the death of the tenant of the second life-estate, it would not vest, although no other life-estate had been created, and the statute gives effect to remainders only in the same manner as if limited upon two life-estates instead of three. It is plain we think that the statute only executes the remainder in possession in favor of such ascertained persons as, except for the void life-estate, would under the terms of the will or deed, be entitled to the immediate possession. See Knox v. Jones, 47 N. Y. 397; Smith v .Edwards, 88 Id. 104.1

3. Executory Future Estates or Interests.2

1 See also Dana v. Murray, 122 New York, 604. - Ed.

2 "Executory limitations." These were originally future estates of freehold not created by livery of seisin. Such estates were not possible at common law except in one or two localities in England where lands were subject to devise prior to the Statute of Wills. They ordinarily arose either under conveyances operating under the Statute of Uses (27 Hen. VIII. Cap. 10) or by virtue of devises under the Statute of Wills (32 Hen. VIII, Cap. 1.) But even in such cases where a freehold estate was created to take effect as soon as the instrument should become operative and was to be followed by a future estate which would have been a valid remainder (vested or contingent) had livery been made, the courts construed the estates on common-law principles. So also a future estate dependent upon a particular estate which was itself to begin in futuro would be converted into a remainder, if possible, the moment the particular estate should vest in possession. And a future use or executory devise capable of being construed as a remainder could not afterwards be saved by adopting a more liberal construction in case as a remainder it should fail. See Waddell v. Rattew, p. 932, infra.