APPEAL by the defendant, Henry B. Billings, individually, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of February, 1911, granting plaintiff's motion for judgment on the pleadings against the said defendant.
J. Culbert Palmer, for the appellant.
Louis F. Doyle, for the respondent.
The appellant challenges the order appealed from upon the merits, and also because, as he contends, this motion should not have been entertained. It was made under section 547 of the Code of Civil Procedure, which provides that: 'If either party is entitled to judgment upon the pleadings the court may, upon motion at any time after issue joined, give judgment accordingly.' The point of the objection to the procedure is that an issue of law raised by demurrer to the complaint must be brought on for argument on a notice of trial and a decision and interlocutory judgment entered thereon, and that in such a case the summary remedy provided by section 547 is inapplicable. That section has been held in this department to have been intended to permit either party to make in advance of the trial a motion for judgment on the pleadings which, under the practice which formerly prevailed, could be made only at the trial. (Clark v. Levy, 130 A.D. 389.) It has not been held, however, and I can see no logical reason for holding, that such a motion cannot be granted if a material issue of law is raised by the pleadings. Of course, if the pleadings present any issue as to a material question of fact, that issue cannot be disposed of upon such a motion, but every such motion necessarily involves the decision of an issue of law. Nor is it entirely accurate to say that the disposition of every issue of law necessarily requires a formal decision
before judgment can be entered, for on a motion for judgment on the pleadings at Trial Term, which involves the determination of an issue of law, the only basis for judgment is an entry on the clerk's minutes. Prior to the recent amendment of section 976 of the Code of Civil Procedure (Laws of 1909, chap. 493), under which the hearing of a demurrer may now be brought on in this department as a contested motion, there were apparently two methods by which a demurrer could be brought on for a hearing when it went to the whole cause of action or the whole defense. One was by a motion for judgment under section 547, and the other was by the old process of noticing the issue for trial at Special Term, awaiting its turn on the calendar, and, after it had been determined, entering first what is called a 'decision,' and then what is called an 'interlocutory judgment.' Naturally most practitioners chose the simpler, quicker and less expensive method of disposing of the issue. Now the amendment of section 976 has opened the way to finally and completely avoid the useless formalities which formerly obtained in disposing of a demurrer. Of course there must be a decision, which is nothing more than saying that the justice must decide the question presented to him, and that decision must be put in definite form and the consequent judgment of the court pronounced. But there is no reason why the record of the decision and the pronouncement of the judgment should be contained in two papers rather than one, and it can make no possible difference to any one whether the paper which records the decision and pronounces judgment is labeled an 'order,' or a 'decision,' or an 'interlocutory judgment.' The same result will be obtained, the same quality of justice administered, and the same effect produced upon the litigation, if the decision of the question of law and the pronouncement of the appropriate judgment are embraced in the same paper, and it is labeled an order, as would be obtained, administered and produced if two papers are drawn where one will serve the purpose by whatever names those papers may be called. The recent enactment of section 547 and the more recent amendment of section 976 seem to me to have been inspired by a desire on the part of the Legislature to do something towards making our practice simpler and more expeditious, and
I do not conceive that it is the duty of this court to thwart that intention by insisting upon the observance of antiquated and useless formalities which serve only to prolong litigation and increase the costs to litigants. Section 976, as it now stands, permits an issue of law raised by a demurrer to be brought on and tried 'as a contested motion.' The appropriate paper to express the decision of a motion is an order and, in our opinion, the Code could be exactly complied with by holding that when an issue of law is so tried, there need be but one paper entered which shall contain both a statement of the decision and the pronouncement of judgment, and which shall thus take the place of both the decision and the interlocutory judgment under the former practice. Such a paper may appropriately be styled an order, for after all the interlocutory judgment is nothing more than an order for final judgment. In fact the Code nowhere requires the entry of an interlocutory judgment upon the decision of a demurrer, and the use of that name for a paper which puts the decision into effect would seem to be infelicitous. An interlocutory judgment has been defined to be one which leaves something further to be judicially determined by the court. What is called an interlocutory judgment upon the decision of a demurrer leaves nothing to be so determined. Whether an issue of law arising upon the pleadings is brought on under section 547 or section 976, the order should contain the appropriate provisions to work substantial justice which have heretofore been contained in an interlocutory decree on demurrer, such as extending leave to amend or plead over upon proper terms. We are, therefore, of the opinion that the motion in the present case was properly brought on under section 547, since the question of law raised by the demurrer went to the whole cause of action.
On the merits, however, we are of opinion that the demurrer was properly overruled. The will of Chester Billings, deceased, does contain a gift to appellant, not in express words, but in a direction to trustees to divide and pay; wherefore futurity is annexed to the substance of the gift, the same as though there were express words of gift with futurity annexed to the substance thereof by express words. In Smith v. Edwards (88 N.Y. 92, 104) Judge FINCH cited in support of the rule
the early English cases and Jarman on Wills (see 5th Am. ed. § 837), from which it plainly appears that a gift, found only in a direction to trustees to pay or to divide and pay in the future, is the same as a gift at a future time. The distinction is between an absolute gift, payment only being postponed, and a gift to the substance of which futurity is annexed; in other words, between a gift of a vested future interest and a gift of a contingent future interest. The latter is more than a bare possibility, unaccompanied by any interest, or the mere chance of sharing as next of kin in the estate of another upon his death, referred to in Smith v. Kearney (2 Barb. Ch. 533, 546). In Jones v. Roe (3 T. R. 87) Lord KENYON referred to the kind of possibility which was not the subject of disposition, thus 'that which the heir has from the curtesy of his ancestor, and which is nothing more than the mere hope of succession,' and in Miller v. Emans (19 N.Y. 384, 391) Judge SELDEN quoted from Sheppard's Touchstone a description of the three classes of possibilities which could not be released at common law, and certainly the case in hand is not one of them. The appellant then acquired upon the death of his father, not a bare possibility merely, but the right to the possession and enjoyment of one-half of his father's estate in the event that he should attain the age of twenty-five years and survive his mother, and that right was not subject to the will of a third party. The question is whether such a right or interest is property within the meaning of section 1871 of the Code of Civil Procedure.
While there appears to be no controlling authority in this State on the point, it has been assumed by this court in this and the Second Department that a future contingent interest in personal property is alienable, the same as a contingent remainder in real property. (See Stringer v. Barker, 110 A.D. 37; Cohalan v. Parker, 138 id. 849.) The question was not even indirectly involved in any of the cases cited by my brother SCOTT in support of the said rule of construction. The sentence quoted by him from the opinion of Judge EARL in Delafield v. Shipman (103 N.Y. 463) is strictly accurate, without reference to the question before us, but a distinction must be noted between the estate in the hands of trustees and a future interest limited thereon.
If the said interest was a contingent remainder in real property, there can be no doubt that it would be alienable (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § § 36-40, 59; Moore v. Littel, 41 N.Y. 66; Beardsley v. Hotchkiss, 96 id. 201; Crooke v. County of Kings, 97 id. 421; Dodge v. Stevens, 105 id. 585; New York Life Ins. & Trust Co. v. Cary, 191 id. 33), and, therefore, plainly subject to the claims of creditors, for it must be that a man's creditors may reach whatever he himself can sell.
Section 11 of the Personal Property Law (Consol. Laws, chap. 41; Laws of 1909, chap. 45), which was taken from the former Personal Property Law (Gen. Laws, chap. 47 [Laws of 1897, chap. 417], § 2) and the Revised Statutes (pt. 2, chap. 4, tit. 4 [1 R. S. 773] § § 1, 2), contains this provision: 'In other respects limitations of future or contingent interests in personal property are subject to the rules prescribed in relation to future estates in real property.' Doubtless, that section applies only to the creation or limitation of such interests (See Kane v. Gott, 24 Wend. 641; Graff v. Bonnett, 31 N.Y. 9, 17; Cutting v. Cutting, 86 id. 522, 545), but there is manifest propriety in assimilating, as far as possible, the rules applicable to both species of property, and the courts have gradually assimilated most of the rules governing the incidents of future estates in real property to those applicable to future interests in personal property. (Graff v. Bonnett, supra; Williams v. Thorn, 70 N.Y. 270; Cutting v. Cutting, supra; Lent v. Howard, 89 N.Y. 169; Mills v. Husson, 140 id. 99; Cochrane v. Schell, Id. 516; Bergmann v. Lord, 194 id. 70.) In the last case cited the court held, by analogy to section 59 of the Real Property Law, that a vested future interest in personal property could be reached in a judgment creditor's action. To be sure, that case involved a vested interest, but why stop the analogy there? Is there not as close analogy between a future contingent interest in personal property and a contingent remainder in real property as there is between a vested future interest in personal property and a vested remainder in real property? It may be said that a remainder in real property is an estate; that the title is carved up into different estates, e. g., a life estate and an estate in remainder; whereas, in the case of a
future interest in personal property, limited upon a trust estate, the whole estate is in the trustee. But that is so, whether the future interest is vested or contingent. A contingent remainder in real property involves the same elements of chance as a future contingent interest in personal property, and no practical reason can be suggested against the assignment of one which does not apply to the other. By the rules of the ancient common law there could be no future interest in personal property, but with the increasing importance of that species of property the right to the use, as distinguished from the thing itself, was first recognized; then that distinction was disregarded, and in Blackstone's time limitations of remainder interests in personal goods and chattels were recognized. (Sharw. Black. book II, p. 398.) Nowadays the distinction between future interests in personal property and future estates in real property appears to have been altogether lost sight of, and both are commonly referred to and considered in like manner.
At common law contingent interests were not alienable or assignable to strangers for the same reason that choses in action were not assignable, i. e., to prevent maintenance; but they could be released to a party having an interest as that tended to diminish the sources of litigation. (See Miller v. Emans,19 N.Y. 384, 390.) Practically, however, such interests were assignable, for to get around the strict rule of law the doctrine of equitable estoppel was invoked. The peculiar condition of society which gave rise to the common-law doctrine of maintenance no longer exists; wherefore that doctrine does not prevail in this State except as expressly preserved by statute. (Thallhimer v. Brinckerhoff, 3 Cow. 623, 643; Sedgwick v. Stanton,14 N.Y. 289, 293.) Courts of law now recognize the assignability of choses in action, not because the common law has been changed by statute, but because it is progressive. The reason for the old rule having disappeared, the law ...