Columbia Law Review Volume 1 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1901 Excerpt: ...would unquestionably be persons in being who, if the life estate were now to cease, would immediately be entitled to the possession. This view of the statute was fully set forth by Judge Woodruff in Moore v. Littel,8 as follows: "If there 'is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the precedent estate, ' then that remainder is vested, within the terms of the statute. It is not 'a person who now has a present fixed right of future possession or enjoyment, ' but a person who would have an immediate right if the precedent estate were now to cease. 'When there is a person in being, ' means when you can point to a human being--man, woman or child; and ' who would have an immediate right to the possession of the lands upon the ceasing of the precedent estate, ' means that if you can point to a man, woman or child who, if the precedent estate should now cease, would to instanti et ipso facto have an immediate right of possession, then the remainder is vested." The purpose of the present article is not to question the perfect correctness, on other grounds, of the decision in Moore v. Littel,3 or in any of the other cases to be cited, but to ascertain whether the particular and sweeping construction thus given to the statute by Judge Woodruff, 1 I R. S. 725, 28; Real Prop. Law, 44. 41 N. Y. 66. 5 41 N. Y. 66. which involves the startling proposition set forth by Chief Justice Savage,1 that some remainders are both contingent and vested at the same moment, has in fact been adopted and established by the courts as an inflexible and invariable rule. Moore v. Littel was decided in 1869. In the previous year the same Court, in Carmichael v. Carmichael,8 had held that a devise to testator'...