In re Field , 42 N.Y. St. Rep. 815 ( 1891 )

Daniels, J.,

(concurring.) The power of the legislature to provide, by appropriate enactment, for the sale of the interests of infants in real estate, seems to have become reasonably well settled. Leggett v. Hunter, 19 N. Y. 445; Brevoort v. Grace, 53 N. Y. 245. And it will include the interests contingently provided for persons not in being. But such an act cannot take the contingent interest of unborn persons, and donate it to others who are in being, and who, by the failure of the contingency, may become the absolute owners of the property. The living persons may all die before the expiration of this life-estate, and others may come into being who under the deed may be the owners of the proceeds of the sales made of this property, and that possible right should be protected by such a construction of the act as will require the proceeds to be invested for the benefit of the unborn contingent owners until the contingency shall be ended by the decease of the life-tenant. It could not have been the intention of the law to leave these rights unprovided for. In fact, that would exceed the legislative power. So far the rights of persons not in being are required to.be observed and maintained. Brevoort v. Brevoort, 70 N. Y. 136; Monarque v. Monarque, 80 N. Y. 320. And the act may be so construed as to intend that shall be done; otherwise it seems incapable of being sustained. That construction will require a modification of this order, directing the investment of so much of the proceeds of the sales as will provide this protection, and, subject to that modification only, this order should be affirmed, without costs.