USA > New York > New York City > The Memorial History of the City of New York: From Its First Settlement to the Year 1892, Volume III > Part 67
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70
In the year 1826, the revisers, Messrs. Butler, Duer, and Wheaton, mapped out more completely the plan of the revision, and classified the statutes to be revised. They finally determined upon dividing the work into five principal divi- sions, as follows: The first part to contain those acts which related to the territory, the political division, the civil polity, and the internal administration of the State; the · second part, those acts which re- lated to real and personal property, the domestic relations, and to all matters generally connected with private rights; the third part to contain the statutes relating to the judicature branch .of government and to the procedure in civil cases ; the fourth part to be concerned with the statutes relating to crimes, punishments, and to the mode of procedure in criminal cases, and to prison discipline; and the fifth part with the laws relating to cities, villages, and other corporations.
Jos. lyden Hoffman
The first and fifth parts of the Revised Statutes, relating to the ter- ritory, the political divisions, the civil polity, and the internal admin- istration of the State, are of the least interest in a purely juristic or scientific phase of the revision ; but they were of great utility.
There is little doubt that the general and comprehensive plan of the whole revision of 1829 had the valuable cooperation of Mr. Wheaton.2 The first part of the Revised Statutes was the work of Mr. Wheaton, Mr. Butler, and Mr. Duer; but before this part of the revision was acted on by the legislature, Mr. Wheaton was sent abroad in a diplo- matic capacity, and Mr. John C. Spencer took his place. After Mr. Spencer's appointment considerable additional labor was bestowed on the part already prepared; and it may be said, therefore, that the first
1 Josiah Ogden Hoffman was a distinguished lawyer, and was the father of Murray Hoffman, the jurist and author of several works on chan- cery and ecclesiastical law; of Ogden Hoffman, the gifted orator and lawyer. who was counsel in almost every prominent criminal case in New-York city for twenty-five years, and who had been a member of Congress, U. S. district attorney, and
State attorney-general; and of Charles Fenno Hoffman, the accomplished man of letters. Mr. Hoffman was a warm friend of Washington Irving, who studied law in his office. It was to his daughter Matilda that Irving was engaged. When he died, her Bible, containing a lock of her hair, was found under his pillow. EDITOR.
2 "Senate Journal," 1827, p. 32.
634
HISTORY OF NEW-YORK
part of the Revised Statutes was the work of four revisers, and not of three, as originally contemplated.1
While the revisers in their general arrangement mainly adopted the system employed in Blackstone's Commentaries, and took the titles of the various chapters of the revision from that celebrated work, yet they made discriminating changes and avoided some errors made by Blackstone himself, notably his division of the jus privatum into " rights of persons and rights of things," criticized by Austin,-things being incapable of rights and a mistranslation of the phrase of the civilians, "jus rerum." No opponent of Blackstone has ever denied that his arrangement was eminently practical. The revisers could not, therefore, have taken a plan more familiar to lawyers than this, and it added to the success of the work.
If we except the Statute 12, Car. II., ch. 24, converting most of the feudal tenures in England into free and common socage, and sound- ing the knell of the entire feudal system, Part II of the Revised Statutes of New-York embodied the most important reforms ever made by a single statute in the historic land law of an English-speak- ing people.2
1 See Senate Journal, 1827, p. 32; Revisers' Re- ports to the Legislature with chapters 9 and 19 of the first part.
2 The better to note some of the more important changes introduced in the land law of New-York by the revisers, in the second part of their revi- sion (the first three chapters of which are devoted to this subject), we may briefly recall the condi- tion of this branch of our jurisprudence prior to this revision. Charles II., with what right pre- viously inquired, granted the territory occupied by the Dutch of New Netherland, and much more adjacent, to the Duke of York by letters patent, dated March 12, 1664, and subsequently by letters confirmatory, dated in 1674. By both these patents the tenure of the province was " as our Manor of East Greenwich in our county of Kent, in free and common socage, and not in capite, nor by knight's service." At the date of the first patent, the Statute 12, Car. II., ch. 24, had already swept away most of the burdens of feudal tenures in England. The socage tenure in 1664 remained subject only to the feudal incidents of relief, rent, fealty, and escheats. As thus modified, the socage tenure was introduced in New-York. The rent in- cident to it was a quit-rent of trifling value (some- times, in New-York, a bushel to the hundred acres, but in 1732 the surveyor-general's report puts it at 28. 6d. for the same quantity) ; the relief payable by the heirs on the ancestor's death was the equiv- alent of a year's quit-rent, while the oath of fealty was commonly never exacted, and escheats were no more burdensome, in practice, than at the pres- ent time. After the English conquest the former Dutch inhabitants generally renewed the titles to their lands by taking out new patents, which re- cited the Dutch ground-brief and confirmed the possession of their lands, to be held of the ducal proprietor in free and common socage. The new
inhabitants took out their patents from the duke's agents in one of the prescribed forms of convey- ance. Subsequent to 1664 the modified socage ten- ure alone existed in New-York. It will be recalled that, on the Duke of York's accession to the throne, his private estate in the province was merged in the crown, and he became seized thereof jure corona. On the abdication of James II., the prov- ince of New-York pursued the line of devolution prescribed by the act of settlement, the crown por- sessions and the crown being concomitantia. The duke's estate before he ascended the throne was in the nature of a feudatory principality ; after the merger it became a royal province, transmitted secundum jus .corona, and ,thus it remained until the war of independence.
Comparatively recently it was made a debatable question whether the statute quia emptores, prohib- iting subinfeudation, was in force in the province of New-York ; and the revisers seem erroneously to have thought not (see 3 R. S., 565, 2d ed., Rev. Notes), and the Court of Appeals, in the case of De Peyster t'. Michael (6 N. Y., 503), assumed the same thing. But in a later case (People r. Van Rensselaer, 9 N. Y., 338) Judge Denio doubted the correctness of the conclusion, and in the still later case of Van Rensselaer v. Hayes (19 N. Y., 74) he demonstrated the absurdity of the conclusion that the statute was not generally in force in the province of New-York. The fact is one of considerable importance; for if this statute was not in force, a necessary conse- quence was that the feudal system flourished here during the entire English dominion, and for ten years subsequent (or until the statute was enacted in Jones and Varick's revision), with a vigor en- tirely unknown to contemporary England. The obvious error that this statute was not in force seems to have arisen by reason of not distinguish- ing between the manors and the residue of the
635
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK
Although the law of real property remained a difficult branch of legal science, yet the revisers of 1829 did much to rid it of many subtleties which had been fused on it by the political and social pro- cesses through which the common law had passed. The reform in question was accomplished not so much by the introduction of new rules of law, as by the judicious selection and application of the wisest of the old rules, and by the total repeal of mere scholastic subtleties.
The cardinal reform of the Revised Statutes concerning lands did not consist so much in shortening the period during which the power
lands in the province. The erroneous presump- tion was that, because manors existed here, the statute was not in force, whereas by the common law, non obstante the statute, the king might grant the right to his tenants to alienate lands to be holden of the tenant, and thus create a manor, where the lands were not in tenure prior to 18 Edw. I. The lands in New-York not embraced in the manor grants were within the statute, and could not be aliened to be held of other lord or person than the king. In short, every sub-aliena- tion of those lands in New-York, not situated within the manors, placed the new tenant in the same position toward the king, the lord para- mount, as that occupied by the grantor.
During the entire colonial or provincial period, lands in New-York were theoretically subject to the same laws as socage lands in the royal manor of East Greenwich, in the county of Kent, in Eng- land. In point of fact, such lands were almost en- tirely exempt from the nominal rents on which they were holden of the crown. It must not be forgotten that formerly no such thing as an abso- lute ownership of socage lands was known; the tenant had only an estate in them. This estate, without alluding to the more subtle distinctions, was either an estate for years, for life, an estate tail, or in fee simple, the latter being far from ab- solute in the eyes of the feudalists. The method of transmitting title to socage lands in New-York was, until some time subsequent to the war of in- dependence, in accord with the method in vogue in England, whether by descent (the law of pri- mogeniture being in force here until the year 1782); by purchase, in its generic sense as well as in its limited sense ; by deeds of feoffment with liv- ery of seizin, by lease, by exchange at common law, by partition, by releases, by defeasance, by devise, and all conveyances operating by virtue of the statute of uses. In addition to these modes, alienations by matters of record, such as fines and recoveries, until the abolition of estates tail in 1782, and even subsequent (see 2 J. and V., p. 84; c. 250, Laws of 1827), were not unknown in New- York, as is shown by Mr. Wyche's work on the "Theory and Practice of Fines," one of the first law books written and published in New-York. (It was published in 1794.) Of the conveyances by force of the statute of uses, that kind termed lease and re-lease was most commonly employed in New- York prior to the revision of the English statutes by Jones and Varick in 1788, when the mode termed bargain and sale became most prevalent,
and so continued until the Revised Statutes in 1830. Alienation of lands by devise, attested un- der the statute Car. II., was commonly em- ployed in New-York from the very foundation of the English government of the province. Among the earliest English laws of New-York we find distinct recognition of wills. The adoption of the English law of wills introduced the intricate com- mon-law rules relating to executory devises. Yet of all the intricacies relating to the common law, those concerning executory devises were among the most rational, for they arose out of a most candid effort to effectuate the intentions of devi- sors. Therefore, when the revisers of the statutes, appointed after the second constitution, came to select rules relating to certain future interests in lands, they gave the preference to those rules and principles of the common law which were applied to executory devises, rather than to those relating to future uses and contingent remainders.
The establishment of the State government in 1777 made but formal changes in the tenures of New-York and in the law of real property. In- deed, it may be said that until the Revised Statutes the changes effected in the provincial jurispru- dence relating to land were but slight in compari- son to those then introduced. Among the more marked changes effected before the Revised Stat- utes were the following: A resolve of the pro- vincial convention transferred the seigniory and escheats and all lands, together with the quit-rents due to the crown, to the State eo nomine. This statute was further confirmed by an act of the legislature recognizing the people, passed in 1779 (14, 1 J. & V., p. 44; 56 N. Y., 503). In 1782 the first of the statutes affecting the antecedent law of real property was passed (ch. 2, Laws of 1782). Estates tail were altered into estates in fee sim- ple, the law of primogeniture was abolished, and the canon of descents was made to conform to the more democratical institutions. In 1786 the stat- ute abolishing entails and changing the course of descents was reenacted, but with this difference: estates tail were converted into estates in fee sim- ple absolute, thus avoiding any question as to whether the statute of 1782 had not intended sim- ply to change estates in fee tail into conditional fees, as they had existed in England prior to the statute de donis. It is sometimes supposed that when that portion of the statute law of England which extended to New-York was revised by Jones and Varick, some new principles affecting the law of real property were introduced. This
636
HISTORY OF NEW-YORK
of alienation might be suspended, as in the repeal of purely arbitrary technicalities and in substituting therefor uniform and rational pro- visions. Under the Revised Statutes almost any limitation, artificial or inartificial, was valid if it did not contravene some well-known principle of public policy, or the new rule against perpetuities ; a fee might be mounted on a fee as freely by deed as by executory devise; a freehold estate might be created to commence at a future day; an estate for life might be created in a term of years, and a valid re- mainder limited thereon; a remainder of freehold might be created expectant on the determination of a term of years, provided only that such limitation in no way transcended the rule against perpe-
supposition, however, is incorrect; no new prin- ciples affecting this branch of jurisprudence were enacted, and all that Jones and Varick did was to select the English statutes which they deemed in force in New-York after the adoption of the first constitution. The legislature, then, in order to reduce a doubtful question to certainty, repealed the residue not so selected for reenactment, by de- claring their force to be at an end (2 J. & V., 282).
The statute abolishing entails was not a reform of such great importance as it is sometimes es- teemed, for entails might be broken and lands ren- dered alienable by the tenant of the freehold's suffering a fine, or common recovery, thus barring the entail, reversion, or remainder, and converting the estate into one in fee simple. The force of the New-York statutes converting estates tail into estates in fee simple, like all statutes attempting reforms without complete reference to collateral results, was greatly circumscribed by the evident desire of the courts to support the limitations over, in some cases of wills, as an executory devise, so as not to defeat the remainder. In this effort the courts made a distinct departure from the for- mer common law ; and in order not to effectuate the statute to its literal extent, they held that cer- tain words, before creating an estate tail, did not now create an estate tail, which would have been converted into a fee in the first taker, and, there- fore, that the limitation over on the death of the first taker, without issue, was good as an execu- tory devise. (1 Johns., 440; 3 id., 292; 11 id., 337; 16 id., 382, Medcef Eden's case.)
Prior to the Revised Statutes socage lands might be rendered inalienable for an uncertain period by vesting the title to them on contingencies after the creation of a short precedent estate. By an ingenious invention of the conveyancers, through the medium of trustees, to support contingent remainders, the contingent interests could not thereafter be barred as formerly. Contingent remainders might be created by any mode of conveyance. The methods of rendering lands inalienable were by the technical methods styled secondary, springing, shifting, or future uses and executory devises, and those known to the chan- cery bar as express trusts in lands. Under the extremely technical rules employed, limitations might be valid in one instrument, and invalid if put in another. The whole learning was occult. and historically denoted the contest in England between the great landowners who desired to per-
petuate their estates, and the commons who de- sired to render real property merchantable and alienable and to avoid perpetuities. In the course of this conflict, whenever Parliament passed a re- medial act, the noblesse de la robe of England, with the assistance of the Aristotelian logic and the Court of Chancery, invariably defeated the full extent of the remedy. Covered with scholia, and known to only the most intellectual members of the bar, the English law of real property was in practice a very labyrinth delightful only to its guardians, although it had become by 1×26 very systematic and greatly improved. In this year the New-York law of real property had theoreti- cally attained to the same advanced stage of de- velopment as that of England. It was capable of becoming a horrible burden for the new State, and when the young revisers approached their task, the black-letter lawyers, who had learned a recent lesson in the constitutional convention of 1821, made little or no effectual outcry against the reforms proposed.
Having very briefly and inadequately intimated the condition of the land law of New-York when the revisers approached it, we may now assume that it was substantially the English law relative to the English tenure in free and common socage as modified by a few statutes of the province which had become singularly inaccessible, or had fallen into disuse. Premising that the revisers procured the repeal of all the province statutes (Subdivision 4, Sec. 554, c. 21, Laws of 1828). the Revised Statutes declared that the people of the State, in their right of sovereignty, possessed the original and ultimate property in and to all lands within the jurisdiction of the State. Ex- cheats were made to follow this ultimate proprie- torship, though all lands were declared allodial. It has been argued by very learned lawyers that, as long as escheats survived, this change effected no substantial reform, and that the very terminology of the Revised Statutes involved the entire ante- cedent law relating to the socage tenure. Although this is logically true, the real changes effected miti- gated the rigor of the common law of escheat by providing that escheated lands should be subject to the same trusts and encumbrances which they would have been subject to had such lands not es- cheated. The revisers retained the rights, pow- ers, and duties of socage guardians, but vested them in a different class of persons, wisely chang- ing the common-law rule that the guardianship
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 637
tuities. Even contingencies double, treble, or manifold, probable or improbable, might, if they did not cause a perpetuity, be the basis of limitations.
Other changes in the antecedent law were made by Article 1 of Title 2, Chapter 1 of Part II.1
Enough has been said to indicate the scope of the change effected by the revisers. While the work as a whole purported to be a re- vision of existing laws, the term "revision" covered a multitude of reforms, and modified large parts of the common law declared to be part of the law of the State by the constitutions of 1777 and 1821.
The modifications which the revisers made in legal estates in lands
shall belong to the next of kin to whom the inher- itance could not by any possibility descend, so as to enable near relations to become guardians of the in- fant possessors of lands. The wisdom of the com- mon-law rule had been impeached long before by Lord Chancellor Macclesfield. In Article 2 of Part II of the Revised Statutes, the revisers saw fit to perpetuate the rule of the common law, founded entirely on feudal reasons, that only citizens should hold lands within the State, though they modified the rigor of the rule somewhat in favor of persons about to become citizens. The wisdom of retaining any part of the disability in question may be doubted at this day, when land has be- come merchantable property, and the duties of its owners to the State do not differ from those of the owners of personalty.
The second title of Chapter II introduced the most considerable changes in the law of real prop- erty. The revisers, however, retained the estab- lished terms defining the quantity of interest persons might have in immovable property, al- though in some instances they converted particu- lar terms from species to genera : the force of the term remainders was extended so as to include future and contingent uses, as well as contingent remainders. Notwithstanding the abolition of ten- ures, every estate of inheritance continued to be designated either a fee simple, or a fee simple ab- solute, thus preserving the former distinction be- tween limited or conditional fees and fees absolute at common law. The statute, first passed in 1782, converting estates tail into fee simple, was reën- acted, but the revisers remedied the hardship of the original statute by which a remainder limited upon an estate tail was cut off, even though the first taker or tenant in tail died without issue living at his death.
One of the most considerable changes in the antecedent law effected by the Revised Statutes, related to the period during which the power of alienation might be suspended. The common-law period was reduced from any number of lives in being, and an absolute term of twenty-one years, and a fraction for gestation, to two lives in being ; but the Revised Statutes permitted a valid contin- gent remainder, to take effect in case this second life die before attaining majority, or the estate was determined in any other way before the ma- jority of the second life. This reform, though apparently slight, was really a considerable inno- vation; lives alone became the standard of sus-
pension, and no absolute term, not even a day or an hour, might intervene. The new period of sus- pension now amounted to the longest of two lives in being, and, in a single case of actual infancy, the period of minority in addition. At a subse- quent judicial interpretation of this new rule in which they took part, the revisers do not seem to have been entirely clear as to what the exact ob- ject of the statute really was. In the leading case of Coster v. Lorillard, they argued that the new rule ought to be applied to executory limitations of a contingent character only, and not to vested remainders which did not suspend the power of alienation. The court of last resort, as it was then composed, had a good proportion of laymen, and the new rule was ultimately applied to all future estates in lands, vested and contingent alike. It is difficult to perceive how the court could have decided otherwise, in view of the section which provides for the acceleration of remainders, in all cases where the estate is limited on more than two successive estates for life, to persons in being at the creation of the estate. Yet the other con- struction was stoutly contended for by some per- sons eminent in the legal profession. (See V .- Ch. McCoun's opinion, 5 Paige, 179- 198.)
1 The famous common-law rule now associated only with Shelly's case was abrogated, and, ac- cording to the real intention of the donor when the remainder was limited to the heirs of a person to whom a life estate in the same premises was given, the heirs, by the Revised Statutes, took as purchasers. The rule in Shelly's case had origi- nal reference in England to the political struggle against perpetuities, and its longer existence was now rendered unnecessary in New-York by reason of the very clear rule on the subject of perpetu- ities. The accumulation of the profits of lands was controlled so as not to permit a repetition of . Thelluson's case (4 Vesey, 221 ; 11 id., 112); and as the New-York law was not, of course, affected by the British acts 39 and 40 George III., an en- tirely new provision was introduced : the revisers confined the accumulation of the profits of lands to the single case of an infant owner or beneficiary, and tolerated it in no other case. Many other minor provisions, confirming the general scheme of the statute, were revised and incorporated by the revisers in the revision ; but in a general com- mentary on the subject it is impossible to refer to all of them.
638
HISTORY OF NEW-YORK
having been noticed, we may point out some of the changes which they instituted relative to uses and trusts, cognizable in the Courts of Equity of New-York from the inception of the English rule. Although prior to the Revised Statutes the exigencies of society here, as fortunes were then more limited, had not made any very great de- mands on the English law of trusts, yet by reason of the constitu- tional definition of the fundamental law of New-York, the English law of uses and trusts was assumed to be in full force and vigor in the State. It was in consequence open to like objections, which prior to the Revised Statutes had been very fully discussed in Eng- land by an advanced thinker, a barrister of Lincoln's Inn, Mr. Hum- phreys, who had outlined a scheme of reform of the socage tenure, and made some very practical suggestions. Our revisers certainly had the benefit of his scheme, though they did not always follow it to its logical conclusion, with diverse opinions as to the result. The law of uses and trusts had grown up in England from a species of in- direct legislation, sometimes called the English jus honorarium from its likeness to the pretorian legislation of Rome. The reforms in the branch of the New-York law contemplated by the revisers were materially assisted by the popular hostility to the extended judicial power of the chancery, already noticed. The Statute of Frauds1 had put an end to secret trusts, and required all trusts in lands to be in writing; and subsequent to this the learning on this subject had be- come fairly systematic. The Revised Statutes abolished all charitable and pious uses and all simple or passive trusts, and saved only four classes of active or special trusts, called " the statutory trusts."" Most of the former active trusts, however, survived the revision as powers in trust, while some former trust powers were enumerated as express trusts.3
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.