157 Iowa 363 | Iowa | 1912
— The property to which this controversy relates is a specific portion described by metes and bounds, of the N. "W. % of section 30, township 81 N., of range 27 W., of the fifth prime meridian, in Dallas county, and plaintiffs trace their title through their grandfather, S. G. Birdsall, who died seised of the entire quarter section, leaving
Before proceeding further with the discussion of the nature of the remainder devised, we may well notice the argument advanced, that, as plaintiffs in whom are now
Coming now specifically to the question whether the devise of a remainder to the children of the life tenant surviving at his death and the issue of such children who do not thus survive creates a contingent remainder, we find the authorities practically agreed, with an exception hereafter to be noted, in the conclusion that the remainder is contingent on account of the uncertainty as to the persons who are to take. It is not necessary here to elaborate definitions of contingent remainders which shall be applicable to all possible eases. It is enough to say that in such a case as that which we are discussing, reason and authority point to the inevitable conclusion that during the continuance of the life estate there is a contingency not only as to the extent of the share to be enjoyed by those who may survive, but also as to the persons who are to take shares in the remainder, and this uncertainty relates, not only to the
It is to be noticed that by the language of the will in question the condition on which the children or their issue are to participate in the remainder is clearly precedent, and not a condition subsequent. The provision is not that
The lower court correctly held that the facts set up in the answer constitute a defense to plaintiffs’ petition, and its judgment is therefore — Affirmed.