
    Miller and Wife v. Emans et al.
    
    Devise which took effect in 1810, to three sons and four daughters, of real estate in equal shares, with a provision that if either should -die without lawful issue his or her shares should be divided among the survivors: Held, that the future contingent interest of the devisees severally, while all were living, was not a mere naked possibility, but passed by release from some of them to the others.
    The cases of Pelhtreau v. Jaclcson (11 Wend., 110), Jaclcson v. Waldron (13 id, 178) and Edwards v. Varich (5 Denio, 664), so far as they may be regarded as conflicting herewith, overruled.
    
      ' It sgems that any and every contingent right, however uncertain, may be released to a party already seised of a present estate in the premises in possession; and that the mere remoteness of the contingency affords no objection to its being so released, provided the right can be said to have any present existence. Per Selden J.
    Appeal from the Supreme Court. Action to recover the possession of a fractional undivided part of two parcels of land situated in Peelcskill, Dutchess county, of-which James Emans died seised in the year 1810. He left seven children, surviving him namely: three sons, Cornelius, James and John, and four daughters, Elizabeth, Catharine, Ann, the wife of James"Beaty, and Margaret, the wife of John Miller, the said John and Margaret being the plaintiffs in the action. By the will of James Emans, executed in 1805, he devised and bequeathed all the residue of his estate (after the payment of certain legacies) to his children above mentioned, to be equally divided among them; and he added the following clause: “ It is further my will, that in case either of my said sons and daughters, last mentioned, should die without lawful issue, the proportion of my estate which he or she may" receive by virtue of this will shall be equally divided among the survivors.” The sons were made executors, and were authorized to sell and convey all or any part of the real estate.
    After the death of James Emans, and on the 14th June, in the same year, the daughters, together with the husbands of the two who were married, executed under their respective hands and seals an indenture of release and quit-claim to the three sons. By this instrument, the daughters (describing themselves as the children and devisees of James Emans), and their husbands, in consideration of $10, as expressed, remised, released and forever quit-claimed to the sons, who were named and described as the sons and devisees of James Emans, deceased, all the lands, &c., of which James Emans died seised, “ and all the right, title, interest, property claim and demand of any nature of the releasers, in or to the said lands, &c., and the reversion and reversions, remainder and remainders, rents, issues aiid profits thereof.” The instrument also conveyed to the sons all the daughters’ right, &c., to the personal estate which they were entitled to under the will of their father, or otherwise; and it released and discharged the sons of and from all legacies, &c., and demands under the will of their said father.
    John and Cornelius, two of the sons, took possession of the two parcels of land in which the plaintiffs claim undivided shares; and the defendant, John S. Emans, a son of Cornelius, was in possession at the time of the commencement of the action. Four of the seven children of the testator are deceased, having died in the following order of time: Elizabeth, Ann, Cornelius, Catharine. Only one of them, Ann, left issue. Cornelius left a will by which he devised all his real estate. The plaintiffs claimed to recover, notwithstanding the release of Margaret, her portion of the shares of her sisters and brother who had died without issue.
    The case was heard at special term, before Judge Barculo, who decided that the plaintiffs were entitled to recover an undivided one-seventh part of the premises. The defendants excepted; and, the judgment having been affirmed at a general term, they appealed here.
    
      Nicholas Hill, for the appellants.
    
      John Thompson, for the respondents.
   Selden, J.

The only clauses of the will of James Emans which are material to the questions to be considered are the following:

Thirdly, it is my will that all the residue of my estate, both real and personal, after paying out the legacies above mentioned, my just debts and funeral expenses, should be equally divided among my sons, Cornelius, James and John, and my daughters Elizabeth, Catharine, Ann and Margaret.”
“ Fourthly, it is my further will that, in case either of my said sons and daughters last mentioned should die without lawful issue, the proportion of my estate which he or she may receive by virtue of this will, shall be equally divided among the survivors.”

The question is, whether the interest of the daughters in the real estate of their father, and especially their contingent right of survivorship, under the fourth item of the will, passed to the sons by the deed of the 14th of June, 1810. To determine this question, it is necessary to recur to some of the principles which govern this mode of conveyance. A release was a form of transfer, used at common law only where some right to real estate existed in one person, the actual posséssion of which was in another. The possession in such case was said to “countervail livery” (Dyer, 269, pl. 20, in marg.), that is, it supplied the place of and rendered unnecessary that open and notorious delivery of the possession which the common law required in cases of transfer of lands.

After the statute of uses, however, by force of which certain words in a conveyance were held to transfer a constructive possession, deeds combining the necessary words' under the statute, with the operative words of a release, became a common mode of conveying lands to parties not in possession. The deed in question here contains no words which could give it effect under the statute of uses. It is a pure deed of release at the common law, and is governed by common law principles alone. Had it even been executed after the Revised Statutes, the questions would have been the same as now; because no language is inserted which could bring it within the provisions of those statutes, making “ expectant estates ” alienable. Under those provisions they are to be aliened “ in the same manner-as estates in possession,” that is, by “grant,” to consti-" tute which, under the statute, required either a formal grant at common law or an instrument valid as a conveyance under the statute of uses. (1 R. S., 726, § 35; id., 738, §§ 136,138,142.)

It will be useful here to notice the different modes in which releases operated at common law. They were said to enure in four several ways, viz.:

1. Per milter le droit: As where á person who has been disseised releases to the disseisor, his heir or feofee. There, by the release, the right which was in the releaser is added to the possession of the releasee, and the two combined perfect the estate.

2. Per mitter Testate: Where two or more are seised, either by deed, devise or descent, as joint-tenants or coparceners of the same estate, and one of them releases to the other, this is said to enure by way of mitter Testate. As this is the mode in which the release in this case must operate, if at all, in transferring the absolute vested.interest of the daughters, it will be well to dwell for a moment upon it. At common law, joint-tenants could release to each other, but tenants in common could not. (Shep. Touch., 326, 327.) The reason was. that each joint tenant was deemed to be seised of the whole estate and not of his separate portion only. ‘He was seised per my aiid per tout; and hence a conveyance might be made to him without livery of seisen. But tenants in common being seised of their respective portions alone, no title could pass from the one to the other without livery. Under the statute of uses, it is true, one tenant in common could release to another by inserting words of bargain and sale. This release, however, contains no such words, and must, therefore, operate, if at all, by force of the common law. It is clear, then, that if the devisees, under the will of James Emans, were tenants in common merely, this release would be entirely inoperative, even as to the vested interest of the daughters. The recital in the release of the fact of possession in the releasees, would be construed in accordance with the actual title with which they were clothed.

It is perhaps not easy to say what is the precise nature of the estate created by this will. In cases of joint tenancy-the right of survivorship is absolute to the tenant who survives. Here it depends upon the additional contingency of the death of a co-tenant without issue. It is this right of survivorship, .giving to each joint-tenant an interest in the whole estate, which causes each to be deemed seised of the whole. But this ‘interest, even of a joint-tenant, is contingent upon his surviving his co-tenant. Here another contingency is added, and the interest, therefore, is a little more remote.. Still, as the interest of each devisee, however remote, pervades the whole estate, their seisin should, I think, as in the case of joint tenants, be deemed to extend to the whole. The counsel for the plaintiffs must, I apprehend, have come to this conclusion, as he has not made the point.

3. A third mode in which releases operate, is that of enlarging an estate. This is where a person who has a future interest, either vested "or contingent, releases to one who has the possession or some vested estate in the premises. At common law such a release could only be made to one who had an actual rightful possession. Under the statute of uses it might be made to any one who had a vested estate, provided the necessary privity existed; that is, provided the right released and the interest of the releasee were parts of the same estate.

4. The fourth mode in which releases operate is by extinguishment. Where the right released is of such a nature that it cannot be enjoyed in connection with the estate of the releaser, then it becomes extinguished: as where the lord releases his seigniory to the tenant. It will be unnecessary to notice this class further.

The release in the present case, so far as it purports to convey the future interests of the releasers, comes obviously under the third head ; and operates, if at all, by way of enlarging the estate of the releasees. It being executed to parties in the actual possession of the premises, it was not necessary that it should contain any words to give it effect under the statute of uses. Two objections are made to its operation, viz.: 1. That the words used to describe the interests conveyed, do not embrace the contingent rights of survivorship of the releasors ; and 2. That as bare possibilities, those rights could not be released.

The words of the release are, “ all the right, title, interest, property, claim and demand of any nature of the said parties of the first part, of, in, or to the said lands, tenements, or hereditaments, and the reversion or reversions, remainder or remainders, rents, issues and profits thereof.” These words would seem expressly designed to cover every possible interest which the parties might have, and I cannot doubt that they were understood and intended to embrace the interest in question. That interest is in substance a contingent remainder. The difference between an executory devise and a contingent remainder is chiefly in name. In the case of Moor v. Hawkins (1 Hen. Black., 34), an executory devise of precisely the nature of that existing here, was held to pass by the will of one Cochran, devising “all the estate whereof he was seised in possession, remainder or reversion.” The question here is one of intention, and the broad and general scope of the language used clearly indicates that it was intended to embrace every interest possessed by the parties, whatever might be its nature. It is, moreover, an established rule, that general words like' these, contained in a release, are to be taken most strongly against the releasers. Thorpe v. Thorpe (1 Lord Ray., 235).

This brings us to the question whether a contingent interest like this, that is, a mere possibility, can be released. In determining this question, there are two separate principles to be considered, which to avoid confusion, must be kept entirely distinct. The first consists of that rule of policy which prohibits the granting or assigning of remote and contingent rights to real estate, in the same manner and for the same reason that the common law prohibited the assignment of choses in action, viz., because such transfers were thought to promote litigation. “ To prevent maintenance and the multiplying of contentions and suits, it was an established maxim of the common law, that no possibility, right, title, or any other thing that was not in possession, or vested in right' could be granted or assigned to strangers.” (But. and Har., note 212, to Co. Litt., 264, 266.)

But the same policy which prohibited the transfer of these contingent rights to strangers, tended to encourage their release to parties already possessed of some estate in the premises. By such a merger of rights the sources of litigation were obviously diminished. Accordingly we find another annotator upon Colee and Littleton, saying, “ with respect to things that may be released, it is a rule of law, that no possibility, right, title, or thing in action, shall be granted or assigned to a stranger on account of the danger of maintenance, and of multiplying contentions and suits. But although a mere possibility cannot be released to a stranger, yet all rights, titles and actions, may be released to the terre-tenant for securing his repose and quiet, and for avoiding contentions and suits.” (Thomas' Coke, note F, p. 456; Litt, § 446.)

The common law, therefore, favored the release of such rights to the terre-tenant, and the remoteness of the contingency afforded no objection.

The other rule alluded to is this, viz.: that unless there be something in esse to be released, there can be no release; a rule precisely analogous to that which holds that a thing to be sold is essential to a sale. There is no objection to a release to the terre-tenant of a mere possibility, however remote, except that afforded by this latter rule; which has never, I apprehend, been applied to a case like this.

Three cases are given in all the old 'elementary works, as illustrative of the class of possibilities which cannot be released. As stated by Sheppard, they are as follows: “ And a remote possibility that is altogether uncertain cannot be released, and therefore if the son of the disseisee release to the disseisor in the lifetime of his father, this release is void. And so if the conusee of a statute release his right to the land of the conusor, before execution, this release is void. And so if the plaintiff release to a bail in the King’s Bench before judgment given, this release is void. (Shep. Touch., 822.)

ISTow while it cannot be denied that in each of the three eases thus grouped together by Sheppard the release would be void; yet it is clearly erroneous, to rest their invalidity upon the ground of mere uncertainty, as is here done. The two last of the cases, viz.: that of the release by the conusee of the statute, and that by the plaintiff to the bail, are clear cases of a release of a thing not in esse. The right had no existence at the time, and could not, therefore, be released; although it might come into existence afterwards upon certain contingencies, viz.: the issuing of an execution upon the statute or the recovery of a judgment in the King’s Bench.

It is not the mere uncertainty, therefore, that prevents the operation of the release in such cases. There is a large class of possibilities, or contingent interests, equally uncertain, to a release of which there is no objection. They are described in Lampet's case (10 Coke, 50), from which much of the law on this subject is drawn. According to Lord Coke, it was there resolved, “ that a future right or possibility, which may be released, ought to have a foundation and an original inception as aforesaid; so it ought to be a necessary and common possibility, which in Cholmley’s Case, in the second part of my [Coke's] reports (fol. 51 a, 6) is called potentia propinqua; and a possibility which depends upon the death of a man, has a necessary and common intendment, sal, necessary, in respect that all the sons of Adam must die; and common, that the death may happen at such a time that the contingency may take effect.”

Again, it is not the uncertainty that prevents the operation of the release in the first of the three cases put by Sheppabd. That case seems to have been taken from Littleton (§ 446), where it is stated as follows: “ For if there be father and son, and the father be disseised, and the son (living the father) releaseth by his deed to the disseisor, all the right which he hath, or may have in the same tenements, without clause of warranty, &c., and after the father dieth, &c., the son may lawfully enter upon the possession of the disseisor; for that he had no "right in the land in his father’s life, but the right descended to him after the release made by the death of his father.”

Littleton has been understood here to rest the invalidity of the release, upon the contingent and uncertain nature of the right, although this is not the precise import of his language. But there is an obvious reason why the release would be void, aside from that which he gives. The case supposed is one where the release must operate, if at all, per mitter le droit; because the releasee is a trespasser, and has but a naked possession, and no right. It is plain that, in such a case, the release, to be valid, must transfer a present right. It must make that possession _ rightful, which before was wrongful. The whole operation of such a release, is based upon the idea of legitimatizing a wrongful possession. Hence it is said in Jacob's Law Dictionary (Title, Belease): “It is necessary in all cases where a release of lands is made, that the estate be turned to a right, as in a disseisin, &c., where there are two rights, a right of possession in the disseisor and a right to the estate in the disseisee.”

Ho release can be valid which does not unite these two rights; and hence no one can release to the disseisor but the disseisee himself. The heir of the disseisee cannot release, because he has no present right to the estate, and the possession of the disseisor would remain as wrongful after the release as before. The father might still enforce his right, and oust the disseisor, and then the release would be the same as if made to a stranger, contrary to the settled rules on the subject. All this is plain and admits of no dispute.

There is a passage in Lampet's case (10 Coke, 51), which, as it throws some light upon the origin of the idea, which I hold to be entirely without just foundation, that the mere uncertainty of a right affords a reason why it cannot be released to a party in possession, it may be expedient to notice. It is as follows: “It was further resolved, that where there is uncertainty in the person no release can be made; and, therefore, if a lease for life be made, the remainder to the right heirs of J. S., and the lessee is disseised, and the eldest son of J. S. releases to the disseisor, and afterwards J. S. dies, the release is void for it is uncertain whether he would be right heir at the time of the death of his father. And in 17 Elizabeth, this case was moved at bar in the King’s Bench: A man made a lease to husband and wife for twenty-one years, the remainder to the survivor of them for twenty-one years, and the husband granted over this term; and it was held by Wray, Ck. J., and totam curiam, that the grant was void for the uncertainty of the person."

Now it is perfectly clear that the release by the eldest son of J. S., in the example here given, would be void, entirely irrespective of the uncertainty of his right; it being made to a trespasser, and yet transferring no right to the possession; that right being vested exclusively in the tenant for life, supposed to have been disseised. But the omission in the passage quoted, of this conclusive reason why the release would be void, is not more remarkable than the authority given for the effect attributed to what is called the uncertainty of person. In the case cited from the King’s Bench, the husband had granted, not released, to a stranger the entire term absolutely, when his right to a portion of it depended upon the contingency of his surviving his wife. This grant was void, first, because it attempted to convey a greater right than the grantor had. In the next place, it would have been equally void if it had simply purported to release the contingent right of the husband, because made to a stranger, and not to a terre-tenant. What such a case could have to do with the example given in the preceding sentence it is difficult to see; and yet it seems to have been the source from which the idea of uncertainty as the cause of the invalidity of the release is borrowed.

As much of the law on the subject of the release of possibilities has been drawn from Lampéis case, it is not unlikely, that the passage here quoted has given currency to, if it did not originate the idea, that the mere uncertainty of a right presents an obstacle to its being released. That idea is so directly in conflict with the reason universally given why contingent estates, while they cannot be aliened to strangers, are, nevertheless, allowed to be released to the terre-tenant, viz.: that such releases tend to repose and quiet, and to prevent contention, that it seems quite impossible it should be well founded. Whenever this subject shall be fully examined it will, I think, be found that any and every contingent right, however uncertain, may bo released to a party already seised of a present estate in the premises in possession; and that the mere remoteness of the contingency affords no objection to its being so released, provided the right can be said to have any present existence at all.

The interests in question here, viz.: the right of survivor-ship among-the devisees of James Emans, come most plainly and completely within the description given by Coke, in the extract taken from Lampéis case, of possibilities which may be released. They had a distinct “foundation and inception” in the will, and the events on which they depended, were such as must necessarily occur. Nothing remained to be done, but to await the natural progress of events, which, to use the language of Coke, might “ happen at such a time that the contingency might, take effect.” The present case may, I think, be distinguished from that of Anderson v. Jackson (16 John., 382).

It follows from these views, that the release in this case was valid, and operated to transfer the contingent as well as the vested rights of the releasors.

The judgment of the Supreme Court must, therefore, be reversed, and there must be a new trial, with costs to abide the event.

Strong, J. The material question in this case is, whether the contingent interests, by way of executory devises, of the sisters were effectually released to their brothers. If anything future passed, it was, of course, the right of each daughter of the testator; as that was the evident intention of the parties, and the terms of the deed will admit of that construction. I shall speak only of the right (if it may be so called) of Mrs. Miller. She had, upon the testator’s death, a determinable fee in the one-seventh part of the land and a right to succeed to a portion of the estate in it devised to either of her brothers or sisters who might die without lawful issue in her lifetime. Was that right releasable to her brothers?

The right was, of course, not an existing estate in the lands at the time of the execution of the release. It was not then certain that it would ever ripen into an estate in Mrs. Miller, It was, therefore, what is denominated in the books a possibility. Lord Chief Baron 'Comtjst says, in his Digest (Title Release, B., 3): “If a man releases all his right in land this extends to all his present right, though he has a present right only to a reversion or remainder after an estate for life or years in esse." And “ also, though he has only a possibility upon a condition broken or a contingency (R. Jon., 17).’’ The author of Sheppard's Touchstone (supposed to be Justice Dodridge), (322), says: “Also, possibilities of land, &c., if they be near and common possibilities, albeit they be not grantable over to another person, yet may they be released to him that hath the present estate of the land.” This author does not define what may be a near and common possibility, but he doubtless has reference to the time and nature of the contingency on which the future estate may vest. Now, in this case, the contingency must be, if at all, in the lifetime of a single person. That is not deemed remote, in a legal sense, when applied to executory devises. They are deemed remote when they depend upon some contingency which may extend beyond the lives of designated persons (the number being unlimited at common law but restricted to two by our statute), and a brief time after the death of the survivor. A possibility may, therefore, be deemed a near one which must eventuate, one way or the other, during the life of a single person. Neither is it an uncommon event that one of seven persons should survive one or more of the others, or that the precedent death might be of those who had no lawful issue. There is a distinction between possibilities which are releasable and those which are not, which seems to be fairly presented by the instances usually mentioned, although I do not recollect seeing it distinctly stated in any authority. There are some which depend solely upon expectation or presumption, and which may fail through the will of another. Thus there is generally an expectation or presumption that a lawful child of a proprietor of land in fee simple will inherit it, or a part of it, upon the death of the parent. But that may be prevented not only by the premature death of the child, but also by a conveyance or devise to another by the parent. In snoh case there is no existing right in the presumptive heir, and a release by him would be inoperative. When, however, there is an existing right in one, which cannot be defeated by the volition or action of another, to a future estate upon a contingency there is something upon .which a release might operate. It is not what Chief Justice Wilmot called a mere nonentity. The authors speak of it as a right coupled with a contingent interest in real estate: such a fixed right to a contingent estate may be released. This subject was elaborately discussed in the case of Jackson v. Waldron (13 Wend., 178). That arose on the celebrated (in the law) will of Medcef Eden. In that, as is well known, there were devises of determinable fees to the testator’s two sons, with an executory devise to the survivor, if he who died first should depart this life without lawful issue. The two sons joined in an assignment of a mortgage given by a former owner, and which was held by their father at the time of his decease, and in the assignment there was a special clause conveying all the right, title and interest of the assignors, of, in and to the mortgaged premises, to the assignee. The question was, whether the executory interest of the survivor passed to the assignee by such conveyance, and it was decided it did not. That did not raise the question whether one of the brothers could have ’ released his right of contingent succession to the other. The assignment was a conveyance to a stranger, not a release to one having some prior estate or interest in the land. The Chancellor and Senator Tracy went elaborately into the discussion as to what possibilities were transmissible, what were releasable and what were neither. The Chancellor thought that the interest of the survivor, to which he was contingently entitled under the executory limitation in the will, passed to the assignee of the mortgage under the peculiar phraseology of the assignment. Senator Tracy came to the conclusion, that if the person who was to succeed to the estate had been definitely named, then he might have released his right; but that when there is (as there was in that ease) a devise of a possibility to the survivor there was no designation of the person, and, that therefore, there was nothing which either could release. He quoted Chancellor Kent, who says (4 Com., 262), “if the person be not ascertained, they are not then possibilities coupled with an interest.” But was that principle applicable to the case which the senator was discussing, or is it applicable -to that which I am now considering? In all cases one having a possibility may never succeed to the estate. The question in most cases is, whether the person who may have the estate upon a specified contingency is designated. If so, it matters not what the contingency may be, whether of survivorship or of any other circumstance, there is a right in the person named. The confusion in the mind of the learned and eloquent senator m the case of Jackson v. Waldron, was caused by the fact that in that case the right by survivorship was common to two. Had the contingency, by which an estate was to vest in one of the brothers, been the prior death without legal issue of some other person, he would not have supposed that there could have been any more than the ordinary uncertainties upon which executory devises are made to depend. In the case under consideration there was a devise to Mrs. Miller upon the contingency that she should survive either of her brothers or sisters who should die sine prole. There was clearly a designation of the person who was to take in those events. The uncertainty which accompanies a mere naked possibility is as to the person who may succeed to the estate upon the occurrence of the contingencies. In this case there is none. I repeat it, survivorship is a contingency; and all that is neces-' sary in order to attach an interest is that in the event of one person outliving another the devisee should be designated.

Why should not one have the power to release a contingent right to land in himself to the existing qualified proprietor? Such a right by unfettering estates would be more beneficial, certainly to the present owner, probably to both parties. It could be prejudicial to none, as the object of neither could „ be to encourage litigation; but the motive and probably the tendency would be the other way.

The judgment should be reversed, and there should be a new trial: the costs to abide the event of the suit.

Comstock and Grover, Js., concurred in both the preceding opinions. Allen, J., concurred in that of Selden.

Denio, J. (Dissenting.)

The material questions in this case have all been decided in the course of the litigation which arose upon the will of Medcef Eden, which has so often been, in different forms, before the courts of this State. In the first place, the limitation in favor of the surviving devisees, in case any of them should die without issue, is a good executory devise; the failure of issue mentioned referring to the time of the death of each of the primary devisees. This was decided in Anderson v. Jackson, in the Court of Errors (16 John., 382), the will of Eden, in this respect, being precisely similar to the one before us. It will be remembered that by that will the testator devised different parcels of land to each of his two sons, Joseph and Medcef, with cross limitations in fee to the survivors in the event of their respectively dying without lawful issue. The two devisees conveyed, by deed of release expressing a pecuniary consideration, a lot of land, parcel of that devised to Joseph, to one Winter, under whom Eichard Yarick subsequently derived title. Then Joseph Eden died, leaving his brother Medcef, Jr., surviving; and the latter afterwards died, having disposed of his real estate by will. His devisees claimed the lot on the same ground insisted on by the present plaintiffs, namely, that the expectancy of Medcef, under the executory limitation in his favor, was not, during the lifetime of Joseph, such an estate or interest in land as was capable of being conveyed or even released. Their devisees obtained possession under a judgment in ejectment in an action in which the deed to Winter was not given in evidence, and Yarick then brought ejectment relying upon that conveyance and taking the ground that Medcef’s interest did pass by it to Winter. The action was commenced in the Superior Court of the city of Hew York, where Yarick recovered. The defendants brought a writ of error to the Supreme Court, where that judgment was reversed, and the last mentioned judgment was affirmed in the Court for the Correction of Errors. Then the parties claiming under Richard Varick, who had died, brought a suit in Chancery against those claiming under the will of Medcef Eden, Jr., to have the deed to Winter enforced upon equitable principles; under the idea that although it was defective in law for the purpose of passing the contingent right of Medcef, Jr., it was available in equity as equivalent to an executory agreement entered into upon a valuable consideration. The complainant succeeded before the Vice-Chancellor and the Chancellor, but the decree was reversed , ' «r m the Court of Errors. (Pelletreau v. Jackson, 11 Wend., 110; Jackson v. Waldron, 13 id., 178; Varick v. Edwards, 1 Hoffman, Ch. Rep., 382; S. C., 11 Paige, 289; Edwards v. Varick, 5 Denio, 664.) The judgment of the Supreme Court and the Court of Errors was that the interest of the executory devisee in such cases was a mere possibility, not, in judgment of law, coupled with an interest in the land; that it could not descend to the heirs of the devisee if he had died before he acquired the title by the death of the primary devisee, which was very plain, and that it could not be devised, or assigned, or released to the first devisee or his assigns. I at first thought the last branch of the proposition was not necessarily involved in the case, and that although the prevailing opinions in the Court of Errors, on both occasions, laid down the rule to the full extent above stated, we could still look into the antecedent authorities and determine for ourselves whether such a right was capable of being released. But I think that point was necessarily, as it certainly was in terms, decided. If Medcef Eden, Jr., could release to his brother, or to his brother’s grantee, the instrument which he executed would have been such a release. They joined in the deed to Winter. That deed indisputably passed the determinable fee which was vested in Joseph. Medcef’s release to Winter took effect at the same moment, and if it were possible to transmit his expectancy by a release to Winter, it passed by that instrument. But the Court of Errors held that it did not pass.

We cannot consistently, with these precedents, hold that the plaintiff, Margaret Miller, by the deed under consideration, divested herself of the contingent limitations in her favor which afterwards took effect by the death of certain of her sisters and of her brothers without issue.

Judgment reversed and new trial ordered.  