Anthracite Savings Bank v. Lees, 176 Pa. 402

Anthracite Savings Bank v. Lees

176 Pa. 402 | Pa. | 1896

Opinion by

Mr. Justice Green,

It is very clear that under the devise contained in the will of Philip Keller, his two sons took a life estate in the land in question as tenants in common, each for the one undivided half of the land, with remainder in fee to the children of each for the share of the parent. It is equally clear that the interest of the children was a vested estate in remainder from the time that children were born. At the time of the death of the testator neither of his sons had any children, and at that time the remainder was certainly a contingent remainder depending on the subsequent birth of children. After the death of the testator both of his sons married and had three children each, all of whom are minors and now living. There is also the possibility of the birth of other children. The case, then, is the very ordinary one of a devise to one for life with remainder in fee to his children. The circumstance that there may be more children born who may be entitled to come in and share the estate, in no. *407manner affects the character of the estate in remainder. Its character as a vested estate was established at the birth of the first child, for then that which was uncertain, and therefore contingent, became certain and fixed, and the estate in remainder under the will became at once a vested remainder, and was no longer contingent. This conclusion is not at all disputed by the appellee, but it is claimed that because of the possibility of the birth of future children, the remainder becomes contingent as to them, and hence the orphans’ court had jurisdiction to grant the order of sale. The fault of this contention is very apparent. While there were no children and it could not be known that there would ever be any the existing condition was contingent, and it would require the positive fact of children born to remove the contingency. But the moment that children are born there is no longer any contingency, the condition of the devise is met and the estate in remainder becomes necessar rily vested. It certainly cannot become again contingent while there are children living, simply because there is a possibility that more children may be born in the future. Even as to such children, if any shall come into being, the law is perfectly well settled that the remainder will open and let in others who come within the class before the determination of the particular estate. This rule is thus expressed: “ A remainder where it has vested only in interest and not in possession, will open so as to let in others who become capable of taking before the remainder is actually vested in possession, that is before the determination of the particular estate. In other words where real property is limited by way of a remainder to a class of persons, some or all of whom are unborn; if any of them come in esse before the determination of the particular estate, the property will vest in such person or persons subject to open and let in the other members of the class who happen to come in esse before the determination of the particular estate: ” Smith on Executory Interests, 704*; Fearne on Remainders, 314.

In Fetrow’s Estate, 58 Pa. 424, a devise was to Matilda, “ during her natural life, and after her death I give &c., the same unto her children, their heirs and assigns forever. . . . Should the said Matilda die without issue as aforesaid, then and in that event I direct that the real estate bequeathed to her as aforesaid shall be sold and the proceeds thereof I direct shall be equally *408divided amongst the other devisees named in this my last will or their legal representatives.” Matilda died, after the testator without children. It was held that she took an estate’ for life with contingent remainder to her children then unborn, which would have vested in them in the first child alone, and opening from time to time to let in others as they were born.

This case is important not only in affirming the general principle of letting in subsequently born children from time to time, but as also deciding that a devise to children then unborn would be changed from a contingent to a vested remainder upon the birth of the first child.

It is not disputed that the authority of the orphans’ court under the Price act, does not extend to vested remainders. The author of that act himself says, Price on Real Estate Act, p. 107, “ A limitation in a deed or will may be to one for life remainder to his children, he having none at the time which makes the remainder to the children contingent because none might be born; then one or more are born and the law favors the vesting of contingent remainders at the earliest practical moment; therefore when the first child is born, the whole estate becomes instantly a vested remainder in him, but with a liability to be reduced to one half or less as each other child shall be-born. Now the vested remainder will not be within our act unless for minority or other cause than a contingency mentioned in the act, and the question will be whether the shares that might accrue to those who may yet be born can be barred. When none was born, there was a contingency that gave the court jurisdiction; can it have jurisdiction as to the shares of those who may yet be born ? As to them the contingency is in fact as great as it was when none was born. The courts must determine the question whether it is within the spirit and policy of the law.”

Notwithstanding the doubt expressed by the learned writer, we are unable to see the difference between this and the ordinary case of a life estate with a remainder in fee to children then unborn, but where children are born during the continuance of the life tenancy. In such case it is beyond all question that the contingent character of the remainder is lost the moment the first child is born and thereafter the whole estate is vested, and simply opens to let in children afterwards born.

*409As it is clear that the Price act does not embrace the cases of vested remainders, we see no other conclusion to be reached than that the order of sale made in the present case was void for want of jurisdiction. That being so the purchaser was not bound to take the' title, and the judgment must therefore be reversed.

Judgment reversed and the rule for judgment for want of a sufficient affidavit of defense is discharged at the cost of the plaintiff.