may be determined before they attain their full age. Every future estate is declared to be void in its creation, which suspends the absolute power of alienation for a longer period than is above prescribed. The New

A trust estate, if it be so limited that it cannot, in any event, continue longer than the actual minority of two or more infants in being at the creation of the estate, and who have an interest therein, either vested or contingent, is not necessarily invalid in New-York; for this, in no event, suspends the power of alienation for a longer period than twenty-one years, and the usual period of gestation, if there was a posthumous child. Hawley & King v. James and others, 5 Paige, 318. S. C. 16 Wendell, 61. In this case of Hawley v. James, it was urged upon the argument by one of the counsel, (and who had been himself one of the revisers) that the rule of the common law permitting a suspension of the absolute power of alienation for a moderate term of years without reference to lives, was not within the policy or purview of the revised statutes, and remained unchanged. Blackstone observes that in the two species of executory devises, the contingences ought to be such as may happen within a reasonable time; as within one or more life or lives in being, or within a moderate term of years. 2 Blacks. Com. 173. The object of the statute was to reduce the number of lives to two, and to abolish the twenty-one years as an absolute term, after the expiration of the lives, and confining the additional suspense to an actual minority. See 5 Paige, 394-403. But a moderate term for years was probably deemed not sufficiently definite and precise, and the decision in the case seems to have regarded the statutory restriction as the only one existing. It was decided, that where a trust term created by will was to continue until a number of children and grandchildren, exceeding two, attained the age of twenty-one, it was void under the statute; for the power of alienation of a fee could not be suspended, by means of a trust term, beyond the continuance of, or at the expiration of, not more than two lives in being at the death of the testator, and to be designated by the will, for a term limited upon the minorities of more than two persons not designated, would depend upon more than two lives and be void. Three or more minorities were considered by the court in that case as being equivalent to three or more lives and equally fatal, unless at least two of the minors or persons were specially designated as being those on whom the contingency or event of the estate depended. So, again, in Hone v. Van Schaick, 7 Paige, 221. S. C. 20 Wendell, 564, a similar limitation of a trust of real estate, directing the trustees to apply the future income thereof to several children and their representatives, for the term of twenty-one years from the date of the will, and then, or as soon as the trustees should deem discreet, to divide the fund among the children and their representatives; and the children to take only life estates, with remainders in fee to their descendants, was held to be void under the New-York Revised Statutes, and upon the principles established in Coster v. Lorillard, and Hawley v. James. It rendered the

York statute has, in effect, destroyed all distinction between contingent remainders and executory devises. They are equally future or expectant estate, subject to the same provisions, and may be equally created *272 by grant, or by will. *The statute allows a freehold estate, as well as a chattel real, to be created, to commence at a future day; and an estate for life to be created in a term for years, and a remainder limited thereon; and a remainder of a freehold or chattel real, either contingent or vested, to be created expectant on the determination of a term for years; and a fee to be limited on a fee, upon a contingency. There does not appear, therefore, to be any real distinction left subsisting between contingent remainders and executory devises. They are so perfectly assimilated, that the latter may be considered as reduced substantially to the same class; and they both come under the general denomination of expectant estates. Every species of future limitation is brought within the same definition and control. Uses being also abolished by the same code, all expectant estates, in the shape of springing, shifting, or secondary uses, created by conveyances to uses, are, in effect, become contingent remainders and subject precisely to the same rules. What I shall say, hereafter, on the

interests of the cestui que trust inalienable for too long a time. Every estate is void in its creation which suspends the absolute power of alienation for more than two designated lives in being at the creation of the estate. Life must, in some form, enter into the limitation. So, again, in Van Vechten v. Van Veghten, 8 Paige, 104, it was held that where the testator devised real estate to trustees to sell and apply the proceeds to the support of four daughters during their lives, the devise was void by suspending the power of alienation for more than two lives, because the will directed if either daughter died leaving issue, the income of her share, to be applied to the support of such issue, and if without issue, the income of her share to go to the survivors. The remainder after the death of the daughter, was held to be vested in her issue absolutely. De Peyster v. Clendening, 8 Paige, 295. S. P.

a New-York Revised Statutes, vol. i. 724, sec. 24.

b Ibid. vol. i. 727, sec. 45.

subject of executory devises, will have reference to the English law, as it existed in New-York prior to the late revision, and as it still exists in other states of the Union.a

We may not be able to calculate with certainty upon the future operation of the changes which have been recently made in the doctrine of expectant estates by the New-York revised code of statute law. But the first impression is, that these innovations will be found to be judicious and beneficial. It appears to be wise to abolish the technical distinction between contingent remainders, springing or secondary uses, and executory devises, for they serve greatly to perplex and obscure the subject. It contributes to the simplicity, uniformity, and certainty of the law, to bring those various executory interests nearer together, and resolve them into a few plain principles. It is convenient and just, that all expectant estates should be rendered equally secure from destruction by means not within the intention of the settlement, and that they should all be controlled by the same salutary rules of limitation. Some of the alterations are not material, and it is doubtful whether confining future estates to two lives in being, was called for by any necessity or policy, since the candles were all lighted at the same time, let the lives be as numerous as caprice should dictate. It was a power not exposed to much abuse; and, in the case of children, it might be very desirable and proper that the father should have it in his power to grant life estates in his paternal inheritance to all his children in succession. The propriety of limiting the number of lives was much discussed recently, before the English Real Property Commissioners. The objection to a large number of lives is, that it increases the chance of keeping the estate locked up from circulation to the most extended limit of human life; and very respectable opinions are in favour of a restriction to the extent of two or three lives only, besides the lives of the parties in interest or to whom life estates may be given.

In the case of Coster v. Lorillard, decided in the Court of Errors of NewYork, in December, 1835, on appeal from chancery, (5 Paige, 172. S. C. 14 Wendell's Rep. 265,) the limitation in the statute to the suspension of the power of alienation beyond two lives in being, was strictly sustained. The devise was to trustees in fee, in trust to receive the rents and profits, and pay over and divide the same equally between twelve nephews and nieces, and the survivors and survivor of them, during their lives respectively; and, after the deaths of all the testator's nephews and nieces, remainder in fee to the children of the twelve nephews and nieces living, and to the children of such as may then be dead per stirpes. The will would have been good under the English law, and under the law of New-York as it stood before the Revised Statutes of 1830, for that allowed real property to be rendered inalienable during the existence of a life, or any number of lives in being, and twentyone years and nine months afterwards, or until the son of a tenant for life

*(2.) Of dying without issue, as to real estate. If an executory devise be limited to take effect after a dying without heirs, or without issue, or on failure of issue, or without leaving issue, the limitation is held to be void, because the contingency is too remote, as it is not to take place until after an indefinite failure of issue. Nothing is more common, in cases upon devises, than the failure

should attain his full age. But the New-York Revised Statutes, vol. i. 723, sec. 15, prohibited the suspension of the absolute power of alienation, by any limitation or condition whatever, for any longer period than two lives in being at the creation of the estate, and the prohibition applied to all estates, whether present or future. Here was an attempt to contravene the letter and the policy of the statute, for a sale by the trustees would have been in contravention of the trust, and therefore void. New-York Revised Statutes, vol. i. 730, sec. 65. Nor could the nephews and nieces convey, for the whole estate in law and equity was in the trustees, subject only to the execution of the trust. New-York Revised Statutes, vol. i. 729, sec. 60. The nephews and nieces had no other right than a beneficial right in action to enforce in equity performance of the trust. The remainder-men, that is, the grand nephews and nieces then in existence could not convey, for who were to take in remainder was contingent, and could not be ascertained until the death of the survivor of the nephews and nieces. They had no present estate, and only a possibility. If they survived the twelve nephews and nieces, they took, and not otherwise. The estate given in remainder, therefore, suspended the power of alienation during the continuance of the twelve nephews and nieces, and by the force of the statute the remainder was held to be void, and the trust also void, as being in contravention of the statute, and the estate, (and which was stated in the case as amounting to three millions of dollars, and the rents and profits to upwards of eighty thousand dollars annually) descended to the heirs at law. It was therefore decided, that a devise in trust of an entire estate, to receive the rents or income thereof, and to distribute it among several cestui que trusts, could not be considered as a separate devise of the share of each cestui que trust, so as to protect the share of each as a tenant in common during his own life; and that as the trust was to endure for a longer period than two lives in being at the death of the testator, the whole devise in trust was void. This was the amount of the decree in the Court of Errors, and the discussions in the case, and the contrariety of views taken by the different members of the court, afford a striking illustration of the indiscretion and danger of disturbing and uprooting, as extensively as the revisers in their revised statutes have done, the old established doctrine of uses, trusts, and powers, and which were, as Ch. J. Savage observed in that case, "subjects which baffled their powers of modification."

of the contingent devise, from the want of a particular estate to support it as a remainder; or by reason of its being too remote, after a general failure of issue, to be admitted as good by way of executory devise. If the testator meant that the limitation over was to take effect on failure of issue living at the time of his death of the person named as the first taker, then the contingency determines at his death, and no rule of law is broken, and the executory devise is sustained. The difficult and vexed question which has so often been discussed by the courts is, whether the testator, by the words dying without issue, or by words of similar import, and with or without additional expressions, meant a dying without issue living at the time of the death of the first taker, or whether he meant a general or indefinite failure of issue. Almost every case on wills, *with re- *274 mainders over, that has occurred within the last two centuries, alludes, by the use of such expressions, to the failure of issue, either definitely or indefinitely.

A definite failure of issue is, when a precise time is fixed by the will for the failure of issue as in the case of a devise to A., but if he dies without lawful issue living at the time of his death. An indefinite failure of issue is a proposition the very converse of the other, and means a failure of issue, whenever it shall happen, sooner or later, without any fixed, certain, or definite period, within which it must happen. It means the period when the issue, or descendants of the first taker, shall become extinct, and when there is no longer any issue of the issue of the grantee, without reference to any particular time, or any particular event; and an executory devise, upon such an indefinite failure of issue, is void, because it might tie up property for generations. A devise in fee, with remainder over upon an indefinite failure of issue, is an estate tail; and in order to support the remainder over as an executory devise, and to get rid of the limitation as an estate tail, the courts have frequently laid hold of slender