construed as postponing only the time of enjoyment.*7 In fact, it will be presumed that words postponing the enjoyment of the estate relate to the beginning of the enjoyment of the estate and not to the vesting thereof.1 Where the postponement of the estate is for reasons not personal to the remaindermen the remainder is vested.49 §1008. The Same Subject: Reason for the Rule. The reason for the rule is to prevent the exclusion of property from the natural laws of descent, and to permit and promote the unrestricted alienation of property rather than allow it to be tied up for long periods of time awaiting the happening of some contingency far in the future.50 The conclusion is in consonance with the well recognized rule that the law favors an equal distribution of an estate among those of the same degree of relationship to the testator, and therefore leans to the vesting of estates when an opposite construction would exclude those who have a strong claim upon the maker of the devise from participating in the division of the estate.51 §1009. Remainder May Vest Although Apparent Contingencies Are Expressed. Rules of construction yield to a manifestly contrary intention, either directly expressed or gathered from the context or different parts of the will;52 but after a clearly 47 Lingo v. Smith, (Iowa) 156 S. W. 402. 48 Moores v. Hare, 144 Ind. 573, 43 N. E. 870; Moore v. Gary, 149 Ind. 51, 48 N. E. 630; Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914. 49 Thomas v. Thomas, 247 Ill. 543, 139 Am. St. Rep. 347, 93 N. E. 344; Northern Trust Co. V. Wheaton, 249 Ill. 606, 34 L. R. A. (N. S.) 1150, 94 N. E. 980. 50 Smith v. Chester, 272 Ill. 428, Ann. Cas. 1917A, 925, 112 N. E. 325. 51 Anderson V. Anderson, 221 Fed. 871, 137 C. C. A. 441. 52 Watkins v. Cheek, 2 Sim. & St. 199; Hunter v. Judd, 4 Sim. 455; Russell v. Buchanan, 7 Sim. expressed gift of the residue, subsequent ambiguous expressions will not postpone the vesting.53 Title may vest notwithstanding a seeming contingency, as where a testator, after giving an estate or interest for life, proceeds to dispose of the remainder in terms which, literally construed, would seem to make the ulterior interest depend on the fact of the prior interest coming into possession. In such cases it is considered the testator merely uses expressions of apparent contingency as descriptive of the state of events under which he conceives the ulterior gift will fall into possession or enjoyment, and not with the design of making the vesting of the remainder dependent upon the contingency. For example, under a devise to a sister for life with remainder to a brother for life and after his decease, "in case he should become entitled to such interest," then over to a cousin, the death of the 628; Comport v. Austen, 12 Sim. 246; Bernard v. Mountague, 1 Mer. 422; Glanvill v. Glanvill, 2 Mer. 38; Elwin v. Elwin, 8 Ves. Jun. 547; Knight v. Cameron, 14 Ves. Jun. 389; Law v. Thompson, 4 Russ. 92; Lister v. Bradley, 1 Hare 10; Heath v. Perry, 3 Atk. 101; Wakefield v. Dyott, 4 Jur. N. S. 1098; Eldridge v. Eldridge, 9 Cush. (63 Mass.) 516; Shindler v. Robinson, 150 App. Div. 875; 135 N. Y. Supp. 1056. 53 Montgomerie v. Woodley, 5 Ves. Jun. 522; Brocklebank v. Johnson, 20 Beav. 205; Stretch v. Watkins, 1 Mad. 253; Dodson v. Hay, 3 Bro. C. C. 404, 409; Eldridge v. Eldridge, 9 Cush. (63 Mass.) 516. See, however, Shum v. Hobbs, 3 Drew. 93. Where in the first part of the will the words were sufficient to clearly create a vested remainder in the children of the life tenant, and there was a subsequent direction that the form of the investment should not be changed until the period arrived for its distribution among the remaindermen whom the testator designated as "their children surviving," it was determined that the use of the word "surviving" did not modify the previous clearly expressed gift, nor render the vesting of the remainder contingent upon the survival of the remaindermen.Hannah v. Duke, 16 Ch. Div. 112. See, also, § 881. brother during the sister's lifetime would not cause the remainder to the cousin to fail, the apparent contingency being merely descriptive of the event upon which the cousin would take.54 §1010. The Same Subject: Contingency With Reference to Termination of Preceding Estate. Where a particular estate is devised, then later in the same instrument the remainder is disposed of to take effect upon the happening of an event which will determine the prior estate, the words descriptive of such an event occurring in the latter devise will be construed as referring merely to the period of the termination of the preceding estate and not as designed to postpone the vesting of the remainder.55 Where a remainder is limited "in default" or "for want" of the objects of the preceding limitation, these words mean on the failure or termination of the prior estates, and do not render the ulterior estates contingent upon the event of such prior objects not coming into existence.56 54 Webb v. Hearing, Cro. Jac. 415; Pearsall v. Simpson, 15 Ves. Jun. 29; Massey v. Hudson, 2 Mer. 130; Pearsall v. Simpson, 15 Ves. Jun. 29. See, also, Edgworth v. Edgworth, L. R. 4 H. L. 35; Leadbeter v. Cross, L. R. 2 Q. B. Div. 18; Maddison v. Chapman, 4 Kay & J. 709, 719. As to death of life tenant not causing gift of remainder to lapse, see § 769. 55 Wilson v. Brett, 99 Va. 673, 38 S. E. 181. . 56 Ashley v. Ashley, 6 Sim. 358; Doe v. Dacre, 1 Bos. & P. 250; Goodright v. Jones, 4 Maule & S. 88; Lewis v. Waters, 6 East 336. Compare: Meeds v. Wood, 19 Beav. 215. Where land was devised in fee with remainder over to take effect if the first devisee should die before he married or had bodily heirs, it was decided that the devise over took effect upon the death of the first devisee without heirs, notwithstanding his having married.-Harwell v. Benson, 8 Lea (76 Tenn.) 344. The intent to postpone the vesting of an estate must be clear; it can not arise from mere inference or construction.57 But where the terms of the gift are equivocable subsequent expressions may be looked to for the purpose of explaining what went before.58 § 1011. Power of Disposition in Life Tenant Does Not Make Remainder Contingent. Where an estate is given to one for life with a remainder over to others, and a power of disposition is annexed to the life estate, the remainder is not affected by the power unless and to the extent it is exercised. In such a case the remainder vests subject to the execution of the power, and the uncertainty as to whether the power will be exercised as to all or any part of the estate does not make the remainder contingent.59 This must not be confused with the well known principle that where an 57 Duncan v. De Yampert, 182 Ala. 528, 62 So. 673. 58 Merry v. Hill, L. R. 8 Eq. 619; Tracey v. Butcher, 24 Beav. 438; Judd v. Judd, 3 Sim. 525; Knox v. Wells, 2 Hen. & M. 674; Madden v. Ikin, 2 Dr. & Sim. 207. 59 Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; Mallory v. Mallory, 72 Conn. 494, 45 Atl. 164; Melton v. Camp, 121 Ga. 693, 49 S. E. 690; Boatman v. Boatman, 198 Ill. 414, 65 N. E. 81; Griffiths v. Griffiths, 198 Ill. 632, 64 N. E. 1069; Smith v. Winsor, 239 Ill. 567, 88 N. E. 482; Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310; Spaan v. Anderson, 115 Iowa 121, 88 N. W. 200; McCollough's Admr. v. Anderson, 90 Ky. 126, 7 L. R. A. 836, 13 S. W. 353; Nelson v. Nelson's Exr., 140 Ky. 410, 131 S. W. 187; Stuart v. Walker, 72 Me. 145, 39 Am. Rep. 311; Roberts v. Roberts, 102 Md. 131, 111 Am. St. Rep. 344, 5 Ann. Cas. 805, 1 L. R. A. (N. S.) 782, 62 Atl. 161; Dana v. Dana, 185 Mass. 156, 70 N. E. 49; Edwards v. Gibbs, 39 Miss. 166; Evans v. Folks, 135 Mo. 397, 37 S. W. 126; Buckner v. Buckner, 225 Mo. 371, 164 S. W. 513; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23; Borden v. Downey, 35 N. J. L. 74; Rhodes v. Shaw, 43 N. J. Eq. 430, 11 Atl. 116; Weinstein v. Weber, 178 N. Y. 94, 70 N. E. 115; Hinkle's Appeal, 116 Pa. St. 490, 9 Atl. 938; In re Tilton, 21 R. I. 426, 44 Atl. 223; Hare v. Fer estate is given to a person generally or indefinitely with the power of disposition, such gift carries the entire estate, and the devisee or legatee takes the property absolutely. But when the property is given to one expressly for life and there is annexed to such gift a power of disposition of the remainder, the rule is different and the first devisee takes only an estate for life with the power annexed.61 The right of disposition is not property but a mere authority. An absolute power of disposal is not risburg Congreg. Soc., 76 Vt. 362, 57 Atl. 964; Lantz v. Massie, 99 Va. 709, 40 S. E. 50. "If the remainder is contingent because it may consist of what remains after the exercise of the power of sale and use conferred upon the life tenant, then, in case the life tenant should fail to sell any of the estate or to exhaust for her own use any of the principal thereof, the remainder would still be contingent because it would consist of what remains after paying off the charges created upon the property by the directions to pay the debts and the bequests. To hold that a remainder is contingent because it can not be known how much will be left until the debts and funeral expenses and other charges are paid would make every remainder given by will a contingent one. But it is well settled that a devise to a person after the payment of debts and legacies is not contingent until such debts and legacies are paid, but confers an immediately vested estate. In such cases the remainder vests subject to the payment of debts and legacies and subject to the exercise of the power to use and sell, but liable to be divested as to so much of the estate as may be disposed of for the payment of debts and legacies and by the execution of the power. The remainder is not made contingent by the uncertanty as to the amount of the estate remaining undisposed of at the expiration of the life estate, but by uncertainty as to the persons who are to take."-Ducker v. Burnham, 146 Ill. 10, 37 Am. St. Rep. 135, 34 N. E. 558. A will devising land to one with power of sale, and with remainder over to another in the event there is no sale, is a valid devise.Cottrell v. Moreman, (Tex. Civ.) 136 S. W. 124. 60 See §§ 927, 928. 61 See §§ 929, 973-975. Where power of disposition is not exercised, see § 976. |