| Ill. | Jun 19, 1907
delivered the opinion of the court:
Appellant contends that paragraph 5 creates a vested remainder in the four children of the testator, subject only to be divested by death without issue before the life estate expired; that appellant’s husband having died leaving issue, his interests became absolute, under the will, in his son, Herman, by whose death the estate passed to his mother, appellant herein. Appellees contend that the interests of the four children were contingent; that only those living when the life estate expired could take under the will, and that it was the intention of the testator that the issue of such of his children as might die before the life estate was extinguished should be substituted for the deceased child, and that the interests of such issue were contingent and would vest only in such issue as might be living at the time of distribution.
It is to be noted that by the third and fourth paragraphs of the will the testator devised the estate to the trustees to manage, control, invest and accumulate, and to pay out, from time to time, such sums as might be necessary for the support of the widow and for the nurture and education of the two minor children. There is nothing obscure or doubtful about the trust estate. It is to continue until the widow dies or re-marries. By the fifth paragraph the testator then directs that at the death of his wife the trust estate shall cease and be determined, and “that all of the residue, rest and remainder of my estate, real, personal and mixed, then remaining in the hands of said trustees, shall be equally divided among such of my four children (naming them) as may survive my said wife, or the issue of any of my said children who may have died before my wife, such issue to take the share that would have belonged to the parent.”
Applying the general rule that the expressed intention of the testator, as gathered from a consideration of the whole instrument, must be regarded as of controlling importance in the construction of the will, this court has held that where it clearly appears from the entire will that the remainder was not to vest until the period of distribution such intent must be carried out by the courts, notwithstanding the law favors the vesting of estates. (Starr v. Willoughby, 218 Ill. 485" date_filed="1905-12-20" court="Ill." case_name="Starr v. Willoughby">218 Ill. 485.) In Cummings v. Hamilton, 220 Ill. 480" date_filed="1905-12-20" court="Ill." case_name="Cummings v. Hamilton">220 Ill. 480, it was held that where a life estate was devised and the remainder to Harry C. Cummings, provided that he survived the life tenant, the remainder was contingent. It was there said: “The property was to pass to Harry C. Cummings upon an uncertain and dubious event, viz., if he survived the life tenant, and was therefore a contingent remainder.” The testator may control his estate until the time for division or distribution arrives. (Ebey v. Adams, 135 Ill. 80" date_filed="1890-11-01" court="Ill." case_name="Ebey v. Adams">135 Ill. 80.) In the case at bar the testator devised his estate to the trustees during the life or widowhood of his wife, and directed the trustees, upon the death of the life tenant, to divide the residue among such of his children as survived the widow and the issue of such as might have predeceased the life tenant, and providing that the issue should receive the share that would have gone to the parent. Reading the fifth clause of the will in connection with the third and fourth clauses, it seems clear that the testator intended to postpone the vesting of the estate until the life estate expired, and at that time the estate should be divided among such persons as answered the description of “children or issue of deceased children” at the period of distribution. Appellant was not in either class, hence had no interest in the estate.
The estate of the children, under the fifth clause, was a contingent remainder. Gray, in his Rule Against Perpetuities, (sec. 108,) lays down the following clear test for distinguishing between a vested and a contingent remainder: “Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of or the gift to the remainder-man, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus, a devise to A for life, remainder to his children, but if any child dies in the lifetime of A his share to go to those who survive, the share of each child is vested, subject to be divested by its death; but a devise to A for life, remainder to such of his children „as survive him, the remainder is contingent.” The above statement of the rule is in accordance with the previous decisions of this court. City of Peoria v. Darst, 101 Ill. 609" date_filed="1882-01-18" court="Ill." case_name="City of Peoria v. Darst">101 Ill. 609; Smith v. West, 103 id. 332.
The appellant had no interest in the premises, and the court properly dismissed the bill for want of equity. The decree is affirmed.
Decree affirmed.