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conditional limitations, after a particular estate determinable upon condition. In a former article' we referred to the note of the learned chancellor as clearly erroneous. We considered the statute as "merely declaratory of the common law, which undoubtedly is,' that a remainder, whether termed such or a contingent limitation, or improperly as in this statute a conditional limitation, shall take effect on the happening of a contingent event, which puts an end to the precedent estate."

In the third edition of his Commentaries, chancellor Kent admits the soundness of our construction, and adopts our statement of the existing law in the state of New York as correct.

It would therefore seem to follow, that the framers of the New York statute, if they have succeeded in effectually abolishing uses, have destroyed the only means by which a remainder after a conditional estate could be effectually limited. If such is the result, it is indeed remarkable.

The authors of the statute in question industriously aimed to render such a remainder valid, after a condition in all common law conveyances, but they failed, as unskilful devisors sometimes fail, because their particular intent was inconsistent with the general law that a condition, when broken, renders an estate voidable only, and not absolutely void. In all grants where remainders are limited after a conditional estate, the grantor has, so to speak, a double intent. He intends to reserve to himself the privilege of continuing the particular estate after breach of condition, or of entering for a breach of condition, at his election; an alternative manifestly inconsistent with the exist ence of the remainder. The intention of the grantor is, also, that the remainder should take effect after entry of him in the reversion, or that the remainderman should

1 Am. Jur. vol. xi. p. 61.

2 See Preston on Estates, p. 54.

enter after the election of the reversioner to take advantage of the condition should have been determined.

The absurdity of the statute (according to the effect which was intended to be given to it), consists in the attempt to give effect to the remainder in spite of the intention of the grantor. Its authors seem to have disregarded the design and object of conditions which are for the benefit of the grantor and not of a remainderman, and which when an estate is dependent upon them are capable of being released, waived, or modified, at the will of the immediate parties in interest.

The appropriate means by which a remainder after a conditional estate might be rendered valid were conveyances to uses. The grantor to uses conveyed his whole estate, and prescribed prospectively in the contemplation of various events the disposition of the use. The doctrine of shifting uses enabled him to provide that within the time required by law, viz., a life or lives in being and twentyone years thereafter, the trustees might execute the use at the election of the grantor, and hold for the benefit of the remainderman, or according to the exigences of the use. This was not a case therefore which required reform to give effect to the supposed intention of parties, for the means existed and were peculiarly adapted to the end. A use may be limited in such a manner as to change from one person to another, upon the happening of some future event; a power of revocation may also be annexed to the limitation of a use, by which means the grantor might, at any future time, revoke the uses he had declared, and limit new uses to other persons. According to the nature of the event upon which the estate is limited, a power of revocation might be introduced into the grant, or it might be provided that the use should change by matter ex post facto. If it was the intention of the grantor to exercise the right of election whether to continue the estate, or to limit the

use to the remainderman, a power of revocation would fitly accomplish the object, otherwise it might be provided imperatively that the use should change on the happening of a certain event.

The legislature of New York, supposing that they had given validity to remainders after a conditional estate in common law conveyances, enacted that uses should be abolished; but we conceive that the statutes have failed of their object in both cases. It is impossible for a legislature to abolish uses. Conveyances of estates to certain uses are not declared void. Such a law would be preposterous. The only question therefore is what effect has the statute upon such conveyances? Are they to be construed liberally with a view to support the intent of the parties, or shall they be interpreted strictly as if the conveyance had been directly to the cestui que use?

It is difficult to suppose that a conveyance to uses with power of revocation on the breach of a condition, which would give the grantor a right of entry in a conveyance at the common law, would be construed as vesting an indefeasible estate, or that a limitation of new uses on a revocation of the old would be treated as void, when the manifest but ineffectual intention of the legislature is considered, to give validity to such a limitation after a conditional estate in a common law conveyance: but in either case the result is equally remarkable, if effect is given to the power of revocation-that uses still exist as they have ever done with all the incidents which have belonged to them since the statute of uses—if the power of revocation is considered inoperative, that, notwithstanding the obvious design of the codifiers, there is now, in the state of New York, no possibility of giving effect to a limitation after a conditional estate, in any conveyance known to the law, although such limitations have always been effectually made in convey

ances to uses.

From this state of the law unbounded liti

gation may be anticipated, and the courts must at last be relied upon to settle the construction of these brief and simple legislative clauses, unless the "old law is with great applause restored," as lord Coke said was often done on any ill-advised amendment.

We commend the instance above noticed to future legislators as an example of ill-considered reform.

Chancellor Kent,' in commenting upon the provision of the New York revised statutes, which purports to give effect to a remainder limited on a contingency, which we have noticed, evidently understands the intention of the legislature to have been, to give effect to such a remainder when limited after a precedent conditional estate, and observes, that as the rule was never applied to conveyances to uses or to devises, the statute only reaches a dormant principle, which was rarely, if ever, awakened at the present day." Chancellor Kent must for the moment have forgotten or overlooked the provision of the New York revised statutes which declares uses to be abolished, or he must have supposed that the statute would fail of carrying into effect its declared object. It is unfortunate that the legislature did not explain their intention in this enactment, and it is peculiarly unfortunate that instead of attaining the grand purpose of a code of law, to wit, that of ascertaining and settling its rules and principles, the effect of the statute has been to involve a subject, before well understood, in deep uncertainty. The courts of the state must now reconstruct the system from the materials of that which the legislature have destroyed, according to the exigences of cases which may come within their cognizance.

The statute in question abolishes uses continuing only, such as are in their nature active trusts, and powers in trust. As it is not to be supposed that deeds declaratory of uses

14 Kent's Com. 250.

would be considered void, and as such deeds must receive a just interpretation, with a view to carry into effect the intention of the parties, the statute in its operation would seem to admit of two constructions :

1. That all conveyances to uses shall operate as grants to the party designed to be cestui qui use, to be supported by the same consideration, as is necessary to the validity of a grant and only to be sustained as such.

2. As carrying into full effect the original statute of uses, and executing the legal estate, in the cestui qui use, or cestui que trust, when that estate is created by conveyances which are founded on such considerations, as are sufficient to support deeds to uses.

It is manifest that the former construction conforms to the intention of the framers of the statute, and that the latter would render the provision nearly as inoperative as the original statute of uses itself.

If however all conveyances to uses are to be regarded as grants at the common law, an important question will be, what efficacy shall be given to conveyances formerly operating under the statute of uses. Many conveyances have been supported since the introduction of uses and trusts which were unknown to the common law. If the New York statute is construed as having restored common law conveyances, with the rules applicable to them before the adoption of conveyances to uses, conveyances of the latter description may fail as being unsupported by the rules of the common law. A bargain and sale may be regarded as a grant, and so may take effect as at common law, but what effect shall be given to a covenant to stand seised? To construe this as a grant in all cases, would be contrary to the intention of parties, and to the terms of the agreement.

When it is the manifest intention of parties to a conveyance to create an estate in the grantee, although a use is founded upon it, and when full effect cannot be given to

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