Opinion
December 29, 1905.
James W. Hawes, for the appellants.
Thomas Watts, for the respondent.
Barker took either a vested or a contingent estate. (Real Property Law, § 30.) The estate was a future estate. (Ibid, § 27.) It was an estate in expectancy. (Ibid, § 25.) My induction, therefore, is that it was descendible, devisable and alienable. (Ibid, §§ 3, 49.) And so are the authorities. If the estate was vested, the assignment was valid ( Lewisohn v. Henry, 179 N.Y. 352, 361); if it was contingent, the assignment was likewise valid ( Kenyon v. See, 94 id. 563; Hennessy v. Patterson, 85 id. 91, 104), inasmuch as the uncertainty was not as to the person. (Reeves Real Prop. § 608.)
The learned referee decided that Barker took a vested remainder, and if the decision of that question were necessary to the judgment that the assignment was valid and effective I should be inclined to hold likewise. Professor Reeves, in his admirable book on Real Property, considers the oft-quoted language of WOODRUFF, J., in Moore v. Littel ( 41 N.Y. 66, 76), where, after considering the language of the statute (1 R.S. 722 et seq.) which has been revised in the provisions of the Real Property Law ( supra), the learned judge says: "I read this language according to its ordinary and natural signification, and if you can point to a human being and say as to him, `that man or that woman, by virtue of a grant of a remainder, would have an immediate right to the possession of certain lands if the precedent estate of another therein should now cease,' then the statute says, he or she has a vested remainder." Mr. Reeves cites numerous judgments, many of them in our highest court, which have referred to the rule with approval, and says that although the rule has been sharply questioned (notably a dictum in Hennessy v. Patterson, supra, which in turn has been cited in subsequent judgments), yet the rule of Moore v. Littel has not been shaken, but rather has been made the one practical test of a vested remainder. Examination of some at least of the numerous authorities cited by Mr. Reeves sustains the accuracy of the statement, and I think justifies his conclusion. (Reeves Real Prop. 734, and note.) A trust limited to lives is no more an obstacle to the present vesting than is a life estate. ( Matter of Tompkins, 154 N.Y. 634, 644.)
I think that such assignment was not valid as an absolute assignment of income yet to accrue, because it was forbidden by statute. (Real Property Law, § 83; Pers. Prop. Law [Laws of 1897, chap. 417], § 3.) In Rothschild v. Roux ( 78 App. Div. 282), INGRAHAM, J., for the court, says that section 63 of 1 Revised Statutes, 730, as amended by chapter 452 of the Laws of 1893, is substantially contained in section 83 of the Real Property Law and section 3 of the Personal Property Law. The authorities are clear. ( Lent v. Howard, 89 N.Y. 169; Tolles v. Wood, 99 id. 616; Cochrane v. Schell, 140 id. 516; Rothschild v. Roux, supra.) The rule applies whether the trust is in real or personal property. (Authorites supra, and also Graff v. Bonnett, 31 N.Y. 9, and especially Cochrane v. Schell, supra, 534.)
The learned counsel for the respondent urges that statutory restraint should not apply forasmuch as the provision was not a spendthrift trust. In Cochrane v. Schell ( supra, 533) the court, per ANDREWS, Ch. J., say: "The primary purpose of subdivision 3 of sec. 55, as stated by the revisers, was to enable the owner of lands to make provision for the maintenance of infants, married women or improvident persons out of the rents and profits of his estate, and of sec. 63, to make the interest of the beneficiary inalienable. (Revisers' notes to sections 55 and 63.) But for obvious reasons the objects of a trust under the 3rd subdivision were not specified, and it permits a trust for the receipt of rents and profits for the benefit of any person whomsoever." I think that he cannot rely upon Matter of Tompkins ( supra), for the reason that the judgment in that case but applied the rule of the statute (1 R.S. 726, § 40, revised in Real Property Law, § 53) that "rents and profits undisposed of during a valid limitation of an expectant estate shall belong to the persons presumptively entitled to the next eventual estate." In Chemung Canal Bank v. Payne ( 164 N.Y. 252, 256) the court, per WERNER, J., say that the "general rule is, that if the good be mixed with the bad, it shall, nevertheless, stand, provided a separation can be made." (Citing Curtis v. Leavitt, 15 N.Y. 9, 96.) I cannot see that the subjects of the assignment are so closely knit as to be inseparable. The annual payment is derived from the income of the entire corpus, until the principal sum which is to be derived from the corpus becomes due and payable. When that principal sum is determined and payable, the earnings thereof covered by the assignment cease.
I think that the judgment must be modified as indicated, and as thus modified affirmed, without costs of this appeal.
HIRSCHBERG, P.J., BARTLETT, RICH and MILLER, JJ., concurred.
Judgment modified in accordance with opinion of JENKS, J., and as modified affirmed, without costs of this appeal. Order to be settled before JENKS, J.