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ing the estate limited to him will not render the remainder contingent provided the remainderman has, by such limitation, a present and absolute right to the estate the instant the preceding estate shall determine; but the absence of such present and absolute right renders the estate contingent.29 A contingent remainder may be destroyed by the determination of the particular estate or the happening of the contingency, while a vested remainder would simply be accelerated.30

§ 1005. Postponement of Enjoyment Only Does Not Make Remainder Contingent.

Much confusion has arisen from the failure to observe the distinction between the uncertainty which makes a remainder contingent, and the uncertainty of a remainder ever taking effect in possession or enjoyment.31 If the gift is immediate, although the enjoyment be postponed, it is vested; but if the remainder is dependent upon some dubious circumstance through which it may be defeated, then it is contingent.32 Estates in remainder, although the possession is postponed until after the expiration of the particular estate, in the absence of any further expression to the contrary vest as to the title immediately upon the death of the testator.33

29 Giddings v. Gillingham, 108 Me. 512, 81 Atl. 951; Voorhees v. Singer, 73 N. J. Eq. 532, 68 Atl. 217.

30 In re Brooke's Estate, 214 Pa. St. 46, 63 Atl. 411.

31 Walker v. Alverson, 87 S. C. 55, 30 L. R. A. (N. S.) 115, 68 S. E. 966.

32 Taylor v. Taylor, 118 Iowa 407, 92 N. W. 71; Jonas v. Weires, 134 Iowa 47, 111 N. W. 453.

33 Benyon v. Maddison, 2 Bro. C. C. 75; Doe v. Considine, 6 Wall. (U. S.) 458, 18 L. Ed. 869; Smith v. Bell, 6 Peters (U. S.) 69, 8 L. Ed. 323; Throop v. Williams, 5 Conn. 98; Brown v. Lawrence, 3 Cush. (57 Mass.) 390; Wight v. Shaw, 5 Cush. (59 Mass.) 56; Fay v. Sylvester, 2 Gray (68 Mass.) 171; Barton v. Bigelow, 4 Gray (70 Mass.) 353; White v. Curtis, 12 Gray (78 Mass.) 54; Weston v.

A testamentary gift is to be construed as vested or contingent according to whether the contingency relates to the gift itself or to the time of payment thereof.34 It is not the certainty of possession or enjoyment which distinguishes a vested remainder, but the certainty of the right of future possession or enjoyment if the remainderman who is ascertained lives until the determination of the preceding estate. 35 Where the devise is to the remainderman "from and after" or "after" or "at" or "on" the death of the life tenant, or words of similar import are employed, such expressions are construed as relating to the time of the enjoyment of the estate and not as to its vesting, and such remainder is a vested one.36 The uncertainty as to whether or not the remainderman will live to

Weston, 125 Mass. 268; Ross v. Drake, 37 Pa. St. 373; Womrath v. McCormick, 51 Pa. St. 504.

34 Pennock v. Eagles, 102 Pa. St. 290; Pyle's Appeal, 102 Pa. St. 317.

35 Smith v. Chester, 272 Ill. 428, Ann. Cas. 1917A, 925, 112 N. E. 325; Bruce v. Bissell, 119 Ind. 525, 12 Am. St. Rep. 436, 22 N. E. 4; Lingo v. Smith, (Iowa) 156 N. W. 402; Smith v. Block, 29 Ohio St. 488; Walker v. Alverson, 87 S. C. 55, 30 L. R. A. (N. S.) 115, 68 S. E. 966.

36 Cadogan v. Ewart, 7 Ad. & E. 636; Doe v. Considine, 6 Wall. (U. S.) 458, 18 L. Ed. 869; Johnson v. Washington Loan & Tr. Co., 224 U. S. 224, 56 L. Ed. 741, 32 Sup. Ct. 421; Gingrich v. Gingrich, 146 Ind. 227, 45 N. E. 101; Lingo v. Smith, (Iowa) 156 N. W.

402; White v. Curtis, 12 Gray (78

Mass.) 54; Brown v. Lawrence, 3
Cush. (57 Mass.) 390; Pike v.
Stephenson, 99 Mass. 188; In re
Mahan, 32 Hun (N. Y.) 73; Moore
v. Lyons, 25 Wend. (N. Y.) 119;
Livingston v. Greene, 52 N. Y. 118;
Hersee v. Simpson, 154 N. Y. 496,
48 N. E. 890; Chew's Appeal, 37
Pa. St. 23.

See, also, Appeal of Pennsylvania Co., (Pa.) 10 Atl. 130.

Where the residue was given by will to the testator's sister for life, with directions that at her death the executor should convert the estate into money and deliver it to a designated corporation, the gift to the latter was held to vest at the testator's death; and a subsequent statutory limitation on the powers of corporations to take bequests did not apply.-In re McClyment, 16 Abb. N. C. (N. Y.) 262.

come into actual possession or enjoyment of the estate does not make the remainder contingent, for that is an uncertainty which attaches to all remainders.37

§ 1006. Contingent Remainders Must Vest at Termination of Preceding Estate, or Be Defeated: Statutory Regu

lations.

Unless a contingent remainder becomes vested on or before the determination of the preceding vested estate, it can never take effect in possession or enjoyment; it is defeated.38 It makes no difference whether the preceding estate terminates by reaching the limit originally imposed, or whether it is cut short by merger, forfeiture, or otherwise.39 It was to prevent contingent remainders from being defeated by premature determination or destruction of the preceding estate that the device was invented of interposing trustees to preserve the contingent remainder until the happening of the contingency.40

In some jurisdictions the rule has been changed by statute. In England contingent remainders are not defeated by the regular determination of the preceding estate pend

37 Parkin v. Creswell, L. R. 24 Ch. Div. 102; distinguishing Hogg v. Jones, 32 Beav. 45; Lingo v. Smith, (Iowa) 156 N. W. 402; Kennard v. Kennard, 63 N. H. 303.

Compare: Bristol v. Atwater, 50 Conn. 402.

38 Madison v. Larmon, 170 Ill. 65, 62 Am. St. Rep. 356, 48 N. E. 556; Bond v. Moore, 236 Ill. 576, 19 L. R. A. (N. S.) 540, 86 N. E. 386.

39 Madison v. Larmon, 170 III. 65, 62 Am. St. Rep. 356, 48 N. E. 556.

"Contingent remainders might be destroyed by some ulterior act, such as the tenant in an estate tail suffering a common recovery. But they were not suicidal; some extraneous forces beyond the regular happening of the contingency had to be employed to accomplish their destruction."-Shadden V. Hembree, 17 Ore. 14, 18 Pac. 572. 40 2 Bl. Com. *172; Moody v. Walters, 16 Ves. Jun. 283, 294; Bond v. Moore, 236 Ill. 576, 19 L. R. A. (N. S.) 540, 86 N. E. 386.

ing the contingency."1 Similar statutes have been enacted in some of these United States.+2

§ 1007. Remainder Will Be Construed, if Possible, as Vested Rather Than Contingent.

The courts are disposed, wherever it is possible without violating the intention of the testator, to so construe the provisions of a will as to prevent the title to real estate remaining suspended by a contingency, and will always consider the title as vested rather than as in abeyance, unless the will plainly indicate a contrary intent. No remainder will be construed to be contingent which may consistently with the words used and the intention expressed be deemed vested.

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§ 1426b, referring to statutes of California, Dakota, Georgia, Kentucky, Michigan, Minnesota, New York, Virginia, West Virginia, and Wisconsin.

43 Jones v. Mackilwain, 1 Russ. 220; West v. West, 4 Giff. 198; Booth v. Booth, 4 Ves. Jun. 399; Watkins v. Quarles, 23 Ark. 179; Clanton v. Estes (Vason v. Estes), 77 Ga. 352, 1 S. E. 163; Wills v. Wills, 85 Ky. 486, 3 S. W. 900; Richardson v. Wheatland, 7 Met. (48 Mass.) 169, 171; Winslow v. Goodwin, 7 Met. (48 Mass.) 363; Crisp v. Crisp, 61 Md. 149; Shattuck v. Stedman, 2 Pick. (19 Mass.) 468, 469; Olney v. Hull, 21 Pick. (38 Mass.) 311, 314; Ferson v. Dodge, 23 Pick. (40 Mass.) 287; Pike v. Stephenson, 99 Mass. 188; Toms v. Williams, 41 Mich. 552, 2

The vesting of bequests of

N. W. 814; Collier's Will, 40 Mo. 287; Moore v. Lyons, 25 Wend. (N. Y.) 119; King v. King, 1 Watts & S. (Pa.) 205, 37 Am. Dec. 459; McCall's Appeal, 86 Pa. St. 254.

As to remainders over to a class, see § 890.

The tendency of modern decisions is in favor of holding interests which in earlier times would have been regarded as contingent, vested, subject to be divested.-In re Brooke's Estate, 214 Pa. St. 46, 63 Atl. 411.

44 Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; Bartram v. Powell, 88 Conn. 86, 89 Atl. 885; Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914; Bunting v. Speek, 41 Kan. 424, 3 L. R. A. 690, 21 Pac. 288; Moore v. Sleet, 113 Ky. 600, 68 S. W. 642; Woodman v. Woodman, 89 Me. 128, 35 Atl. 1037.

"The struggle with the courts has always been for that construc

personalty is generally regulated by the same rules by which devises of interests in real estate are governed.+5 Even where a legacy is apparently contingent, yet if the testator direct that the fund be severed from his estate immediately and set apart for the benefit of the legatee, the title thereto will vest.46

It may safely be said that all estates will be regarded as vested unless a condition precedent thereto is so clearly expressed that it can not be regarded as vested without doing violence to the language of the will. To effectuate this rule words of seeming condition are, if possible, to be.

tion which gives to the remainder a vested rather than a contingent character. A remainder is never held to be contingent when, consistently with the intention, it can be held to be vested. If an estate be granted for life to one personand any number of remainders for life to others in succession-and finally a remainder in fee simple or fee tail, each of the grantees of a remainder for life takes at once a vested estate, although there be no probability, and scarcely a possibility, that it will ever, as to most of them, vest in possession." -Croxall V. Shererd, 5 Wall. (U. S.) 268, 18 L. Ed. 572, quoted in Anderson v. Anderson, 221 Fed. 871, 137 C. C. A. 441.

"This rule is not permitted, however, to interfere with the primary rule of construction which requires the court, in all cases, to ascertain and effectuate the intention of the testator, as gathered from the language used, if possi

ble. The court will ascertain such intention by giving to nontechnical words their ordinary and popular meaning, assuming that the testator used them in that sense in which they are generally used and understood."-Freeman v. Freeman, 141 N. C. 97, 53 S. E. 620.

45 Foster v. Holland, 56 Ala. 474, 480; Ferson v. Dodge, 23 Pick. (40 Mass.) 287.

46 Pearson v. Dolman, L. R. 3 Eq. 315; Dundas v. Wolfe-Murray, 1 Hem. & M. 425; Lister v. Bradley, 1 Hare 10; In re Rouse's Estate, 9 Hare 649; Oddie v. Brown, 4 De Gex & J. 179, 185, 194; Greet v. Greet, 5 Beav. 123; Thruston v. Anstey, 27 Beav. 335; Love v. L'Estrange, 5 B. P. C. Toml. 59; Saunders v. Vautier, Craig & Ph. 240; Ames v. Scudder, 11 Mo. App. 168.

See, also, Festing v. Allen, 5 Hare 573, 577; Gotch v. Foster, L. R. 5 Eq. 311.

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