41 Kan. 424 | Kan. | 1889
Lead Opinion
Opinion by
This action was commenced by the plaintiff in error in the distrito court of Doniphan county, on the 9th day of February, 1886. It is an action in ejectment to recover the possession of eighty acres of land, and to
All the material facts are stated in the special findings of fact made by the court on the trial. They are as follows:
“1. Michael Bunting died in said county and state, January 9, 1862, seized in fee simple of the following-described land, to wit: north half of northeast quarter of section 9, township 3, range 20, being the land in controversy.
“2. At his death he resided with his family upon said land.
“3. Michael Bunting at his death left surviving him his widow, Nancy Bunting, and his son, Jacob L. Bunting, who was the only child of said Michael Bunting known to be living at his death.
“4. Michael Bunting had one other child, Daniel Bunting, born to him in his lifetime, but said son Daniel Bunting left Elwood, Kansas, with his wife, in 1857 or 1858, going off in a flat-boat on the Missouri river, and himself and wife were never heard from thereafter, and he left no children, and so far as the evidence shows, none were born to him.
“ 5. Nancy Bunting, widow of Michael Bunting, died April 27, 1885.
“6. Jacob L. Bunting died March 5, 1870, his widow, Sarah E. Bunting, and his only child, Thomas M. Bunting, the plaintiff in the case, surviving him.
“7. Sarah E. Bunting, widow of Jacob L. Bunting, after her husband’s death married Isaac Erickson, and said Erickson and one child by said marriage are now living.
“8. Sarah E. Erickson, former wife of Jacob L. Bunting, died January 26, 1880.
*426 “ 9. Michael Bunting made a will on the 5th day of October, 1861, which was thereafter admitted to probate, and recorded in the office of the prolate court of Doniphan county, Kansas, and letters testamentary with a copy of the will and certificate thereof, issued to Hugh Robertson, executor therein, on March 5, 1862.
“10. The said will and letters testamentary are in words and figures as follows, to wit:
“‘The Tebeitoby op Kansas, County op Doniphan, ss.— To all Persons to whom these Presents shall come, Greeting: Know ye, that the last will and testament of Michael Bunting, deceased, hath in due form of law been exhibited, proven and recorded in the office of the judge of the probate court for Doniphan county, a copy of which is hereunto annexed; and inasmuch as it appears that Hugh Robertson has been appointed executor in and by the last will and testament to execute the same, and to the end that the property of the testator may be preserved for those who shall appear to have a legal right or interest therein, and that the said last will may be executed according to the request of the testator, we do hereby authorize him, the said Hugh Robertson, as such executor, to collect and secure all and singular the goods, chattels, rights and credits which were of the said Michael Bunting at the time of his death in whosesoever hands or possession the same may be found, and to perform and fullfill all such duties as may be enjoined upon him by said will, so far as there shall be property, and in general to do and perform all other acts which are now or hereafter may be required of him by law.
“ ‘In testimony whereof, I, James B. Maynard, judge of the probate court in and for said county of Doniphan, have hereunto signed my name and affixed the seal of said court, this fifth day of March, 1862.
James B. Maynaet>, Judge of Probate.
‘“THE LAST WILL AND TESTAMENT OP MICHAEL BUNTING, OP THE COUNTY OP DONIPHAN AND STATE OP KANSAS.
“‘I, Michael Bunting, considering the uncertainty of this mortal life, and being of sound mind and memory, do make and publish this ihy last will and testament in manner and form following, that is to say:
“ ‘First. I give and bequeath to my son Jacob Bunting the sum of ten dollars.
“ ‘Second. I will and bequeath to my beloved wife, Nancy Bunting, after all my just debts and liabilities are paid, all the rest of my estate, real and personal, to have and to hold them, together with all rights and privileges thereto belonging, during her lifetime, and then they are to descend to my legal heirs.
“ ‘ Third. I do hereby appoint Hugh Robertson, of the county and state aforesaid, executor of this my last will and testament, hereby revoking all former wills by me made.
‘‘ ‘In witness whereof, I have set my hand and seal, the fifth day of October, in the year of our Lord one thousand eight hundred and sixty-one. Michael Bunting.
Attest: Hugh Robeetson, James Matterson Warley, Maky Jane Warley.
“ ‘I, James B. Maynard, judge of the probate court within and for Doniphan county, state aforesaid, do certify that the above and foregoing to be a true copy of the will of Michael Bunting, deceased, placed on file in my office.
“ ‘ Witness my hand and seal of court, affixed at office in Troy, this fifth day of March, 1862. James B. Maynard, Judge of Probate.’
“ Hugh Robertson thereafter acted as executor of said estate.
“11. On August 13,1868, Nancy Bunting executed a quitclaim deed of said above-described land to John D. Paden, which deed was on the same day filed for record and recorded in the office of the register of deeds of Doniphan county.
*427 “12. On August 13,1868, Jacob L. Buntiug and Sarah E. Bunting his wile also executed a quitclaim deed of said land to John D. Paden, which deed was duly filed for record and recorded in the office of the register of deeds of Doniphan county, Kansas, August 21, 1868.
“ 13. In both of said deeds last described the conveyance is of the whole of said lands described in finding No. 1.
“14. On October 27, 1868, John D. Paden and wife conveyed said land to Michael C. Speek, the defendant, who has ever since been in possession thereof; said deed was filed for record and recorded in the office of the register of deeds for Doniphan county on October 27,1868, the consideration thereof being five hundred dollars.
“15. It does not appear from the evidence that Nancy Bunting, widow of Michael Bunting, ever elected to take under the will.
“16. The rental value of the premises in dispute is the sum of two dollars per acre for forty-five acres of cultivated land, to be calculated from and after the 25th day of April, 1885.”
“conclusion ok law.
“Thomas M. Bunting, the.plaintiff, has no interest in the land in controversy, and the defendants, Michael C. Speek and Ellen Speek, are entitled to a judgment for costs.”
It is claimed by the plaintiff in error that the will of Michael Bunting created a life estate in favor of his wife, Nancy Bunting, and a contingent remainder in favor of his heirs. About the creation of the life estate there was not nor can there be any controversy. The controlling question is whether the remainder is a vested or a contingent one. We have given this question very earnest consideration, because it is an open one in this court, and the decision of it establishes to a certain extent a rule of property not heretofore determined in this state.
Blackstone defines “an estate in remainder” to be “an estate limited to take effect and be enjoyed after another estate is determined.” To create an estate in remainder, the owner of the fee must first carve out of the fee an estate for life, or for years, as a supporting or precedent estate to the estate in remainder. This is called the particular estate, for the reason that it is only a small part or particle of the inheritance. The
Remainders are either vested or contingent. A vested .remainder, whereby the estate passes by the conveyance, but .the possession and enjoy ment are postponed until the particular estate is determined, is where the estate is invariably fixed to remain to certain determinate persons: as, if A be a tenant for twenty years, remainder to B in fee; here B’s is a vested remainder, which nothing can defeat or set aside. The particular estate is sure to be spent at the expiration of twenty years. The event upon which the remainder to B is limited, having occurred, the use, possession and enjoyment by B commences by reason of his title in fee, and the termination of the particular estate, and at its determination there is no doubt about B’s right to the possession. Contingent remainders are where the estate in remainder is limited to take effect either to a dubious or uncertain person, or upon a dubious and uncertain event; so that the particular estate may be determined and the remainder never take effect. As, if A be a tenant for life, with remainder to B’s eldest son, then unborn; it is uncertain whether B will have a son or not; if A dies before a son is born to B, there is no person in esse to take the estate, and the remainder is absolutely gone; if B has a son born
These definitions and examples are extracted from Blackstone, Kent, Washburn on Real Property, Williams on Real Property, and other text- writers who have “ raked in the ashes of the antiquated cases,” critically sifted, ably digested, and reduced them to an expression easily understood and most generally adopted. It is the present capacity of taking effect of possession, if the possession would become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. This is the test by which the two estates must be distinguished, as laid down in Kent, as announced in Eearne, and as approved by the great weight of modern authority in this country. Now this line of distinction between vested and contingent remainders is nicely drawn, and difficult to trace, and has always been warped by the struggles of the courts for a construction which tends to support the remainder by giving it a vested character, and to guard it against efforts to defeat it by the particular tenant. Our task is not only to so construe this last testament as will give effect to the intentions of the testator, but as the construction we do adopt will to some extent be relied upon as a rule of property in this state, we must make this line of distinction between these two classes of remainders as easy of comprehension, and as just and equitable in its operations, as we are capable of. To give as clear an idea as possible of this distinction, we venture to express it in different language, and produce a few examples tending, as we trust, to illustrate its operation when applied to cases of this character. If it is clear that certain persons then living have a right to take possession of the property at the determination of the life estate, or at any time when it becomes vacant, then the remainder is a vested one. As, if A by will devised his real property to B his wife for and during her natural life, and at her death to his legal heirs, and at the death of A he had two sons surviving him, and these two sons were living at the time of the death of B; here are two certain, determinate persons to take
“When a conveyance of the particular estate is made to support a remainder, the tenant for the particular estate takes it, and if the remainderman is in being, he takes the fee. In such a case the remainder is not contingent as to its becoming a vested remainder, because the title vests in the remainder-man on the delivery of the deed. The title thus vested becomes an estate of inheritance, and in case the remainderman dies before the particular estate is expended, the title passes to his heirs, unless the deed otherwise directs.”
In Blanchard v. Blanchard, 1 Allen, 227, it is said:
“ Where a remainder is limited to take effect in possession, if ever, immediately on the determination of the particular estate, which estate is to determine by an event that must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainderman is in esse, and ascertained, provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession. Yet, if the estate is limited over to another in the event of the death of the remainderman before the determination of the particular estate, his vested estate will be subject to be divested by that event; and the interest of the substituted remainderman, -which was before either an executory devise or a contingent remainder, will, if he is in esse, and ascertained, be immediately converted into a vested remainder.”
This case is a very fair illustration of the difference between a contingent and a vested remainder. The case was thus, (using the names of persons in this controversy:) Michael Bunting devised all his property, real and personal, to his wife Nancy, during her natural life, with remainder to his son Jacob, and in ease Jacob should die before Nancy, the remainder to his son Daniel. At the death of the testator, Michael Bunting, Nancy, Jacob and Daniel all being alive,
In Hawley v. James, 5 Paige, 466, Chancellor Walworth says:
“A remainder is vested in interest where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession of the land upon the ceasing or failure of all the precedent estates.”
In Moore v. Littel, 41 N. Y. 72, it is said :
“Decisions and text-writers agree that by the common law a remainder is vested where there is a person in being who has a present capacity to take in remainder, if the particular estate be then presently determined, otherwise the remainder is contingent.”
In all these cases and in the text-books, it is always said that before the remainder is vested, “the person must be ascertained;” “the person must be certain and determinate;” and these expressions mean that the. person must be one to whose competency to take, no further or other condition at
We shall adopt Blackstone’s classification and definitions of estates in remainder, both vested and contingent. They are approved by Kent; are more easily understood than those of other text-writers; and better suited to the condition of real property in this state. We shall not allow ourselves to be controlled by the rules established in adjudicated cases, when such rules are difficult of application, and are unharmonious with the general policy of our statutes concerning real property, but shall endeavor to establish some general rule consistent with that policy.
We must now depart from the natural order of this opinion, to point out how the question we are considering has been influenced by the tendency of legislation, and the leaning of the courts, by reason of the demands of public policy and other considerations that have entered into this discussion. The tendency of all modern legislation is against contingent remainders, and this too seems to be the drift of judicial construction. It is said that to have the fee in a state of abeyance, a condition that often occurs in contingent remainders, is always odious. This legislative and judicial current can be attributed to a variety of causes. One of the most influential reasons for the drift is inherent in the subject, for while a remainder, in its original simplicity, would appear to be easy and practical in its application and operation, yet the collateral refinements and complex questions that have grown out of it from time to time cause the inquiry to involve critical discussions upon the most abstruse, subtle, and artificial distinctions in the law. To such an extent had this excessive refinement been carried, that Chancellor Kent said “that the English law of real property has, in the lapse of ages, become incumbered with much technical and abstruse refinement, which destroys its simplicity and good sense, and renders it almost impossible for ordinary minds to obtain the mastery of the science.” Lord Chancellor Cowper said that it had “no foundation in
Let the modern lawyer undertake to read and comprehend the classification of contingent remainders in the treatise of Eearne, or Preston's observations on the rule in Shelley’s Case, until he becomes inextricably tangled in “wild involutions,” and then the drift toward a less refined and a more easily comprehended law of real property will be appreciated. The reactionary feeling against the web of perplexing refinement arose in the place of its growth and development, and resulted in the statute of 7 and 8 Viet. C. 76, in 1844, “for simplifying the assurance of property by deed.” By this statute, contingent remainders are abolished, and it is provided that every estate, that would have taken effect as such, shall take effect, if in a will, as an executory devise; and if in a deed, as an executory estate or limitation of the same nature as an executory devise. By the act of parliament of 1845, ch. 106, so much of the act of 7 and 8, Viet. C. 76, as abolished contingent remainders retrospectively, was repealed, and this latter act allowed “contingent interests” to be disposed of by deed, but not to defeat or enlarge an estate. So that in all conveyances either by will or deed, made after the statute of 7 and 8 Viet., contingent remainders were not created.
In this country the legislation has not been so radical, notwithstanding the existence of numerous and important reasons for it. The aversion of the law to the inheritance being in abeyance; the desire that the alienation of estates should be facilitated; the stability of the title; and the benefit of creditors, are inducements in addition to the complicated condition of the subject to such legislative action as will render the construction of a will or conveyance easy of comprehension to the ordinary mind.
The statutes of New York define an estate in remainder as follows: “ When a future estate is dependent upon a precedent estate, it may be termed a remainder, and may be created and transferred by that name.” These statutes also allow “a future estate which needs no particular estate to support it; and
Of course this legislation practically destroys remainders, properly so called. It looks a little as if such changes were “like jumping out of the frying-pan into the fire.” The complications arising under such enactments may be fairly sampled by the case of Hennessy v. Patterson, 85 N. Y. 91.
At common law, before the contingency happened, contingent remainders could not be conveyed, except by way of estoppel; yet they were assignable in equity, since theoretically such a remainder was not an estate, but a mere chance of having one. Under the statutes in various states, if the person who is to take the estate is ascertained, he has what is called a vested interest in a contingent remainder, which may be alienated by deed. When the person is ascertained who is to take the remainder when it becomes vested, and he dies, it •will pass to his heirs, or may be devised by him. It might always have been released by him to the reversioner. In the case of Putman v. Story, 132 Mass. 205, it is held, that where there was a remainder to heirs, though contingent, it was assignable, it appearing that there were children living at the time. An attempted conveyance by deed will pass the estate by estoppel when it vests. (Robertson v. Wilson, 38 N. H. 48.) When, however, the contingency is not in reference to the person who is to take, but to the event upon which he is to take, the remainderman may grant his interest, and the grantee will take subject to the contingency. (Kenyon v. Lee, 94 N. Y. 563.)
In Drake v. Brown, 68 Pa. St. 223, Agnew, J:, says:
“It is immaterial whether his interest in the property was vested, or contingent; it was liable for his debts.” (See also White v. McPheeters, 75 Mo. 286.) “It may pass to the assignee in insolvency.” (Belcher v. Burnett, 126 Mass. 230.) “Such a remainder descends.” (Chess Appeal, 87 Pa. St. 362; Buck v. Lantz, 49 Md. 439.)
In New York, Michigan, Minnesota, and Wisconsin, expectant estates are descendible, devisable and alienable, in the
The rule in Shelley’s Case, which was a part of the common law, has been repealed or altered by all the states except in Maryland, Georgia, Texas, Indiana, and Pennsylvania. In this state, however, it affects wills only. We quote enough only to show the trend of legislation. Judicial construction has been doing its work in this direction, but the line on which this warfare has been carried on has been .principally against contingent remainders, on the ground that they violate the rule against perpetuities, and that, like executory devises, they must be so limited as to take effect, if at all, within a life or lives in being, and twenty-one years and a fraction after. In Massachusetts the courts have applied the rule against perpetuities to contingent remainders, without question. (Lovering v. Lovering, 129 Mass. 97; Hill v. Simmons, 125 id. 536; Otis v. McLellan, 13 Allen, 339.)
In the case of Heald v. Heald, 56 Md. 300, it was decided that where A. gave an equitable life estate to C., and a similar estate to his children surviving him, and the remainder absolutely to the issue of such children, it was held that the last limitation was void as violating the rule against perpetuities.
We are now to inquire as to the policy of our own decisions and the legislation of this state with reference to this question. It was said in an early case by Chief Justice Crozier (Simpson v. Mundee, 3 Has. 184):
*436 “Real estate here, unlike in the earlier settled portions of the country, being one of the leading subjects of purchase and sale, it is not only convenient, but good policy, that the regulations concerning its transfer should be clear, simple, compact, and as much as possible free from cumbrous forms and solemnities. In framing the legislation, the law-makers have apparently acted with reference to these considerations, and the result is that a man of ordinary intelligence can readily discover what will secure to him a lien upon or a title to real estate, unless indeed it shall be held that some such indescribable myths as the English vendors’ lien constitutes a part of the law of the state. Were it held to be a part of the law, the great majority would not understand it, and but few could. The adoption of it here would work a practical change in the general spirit of the law of the state, and introduce into our legal polity an element of discord which must necessarily complicate our system of real-estate law and work consequences very disastrous.”
Scattered all through the reports of this tribunal will be found cases abounding in similar expressions. Our constant effort has been to make the rules of property as plain and comprehensible as possible. And while we have no disposition to abolish contingent remainders by judicial legislation, we are strengthened in our purpose by these previous expressions to hold a remainder a vested one, whenever we can do so without violence to the instrument creating the estate.
We now turn to our statutes, to note in them a like tendency to abolish many of the distinctions and refinements of the common law in relation to real property. One of the most important of the statutory enactments is the repeal of the section contained in the act regulating conveyances, Comp. Laws of 1862, providing that estates may be created to commence at a future day. This provision was in derogation of the common-law rule that is now in force in this state. So that now estates cannot be created to commence in future. By this statute and a section of the act on trusts and powers, that provides “ that a conveyance or devise of lands to a trustee whose title is nominal only, and who has no power of disposition or management of such lands, is void as to the trustee, and shall
Now, mindful of the rules established, we shall attempt to construe this will in accordance with the declared intention of the testator. About one proposition there can be no doubt, and that is, that the determination of the particular estate — the life estate of Nancy Bunting — was fixed upon an event that was bound to happen in the due course of time, and at her death the persons who had the capacity of legal heirs of Michael Bunting, then living, were entitled to the possession. This will gave a life estate to Nancy Bunting at the time it went into effec^ and created both the life estate and the remainder, and the fee passed to and vested in the legal heirs of Michael Bunting. At that time, to wit, the death of Michael, he left surviving him his two sons, Jacob L. and Daniel, in whom the fee vested. If we are correct in the statement that at the death of Michael Bunting the fee vested in his sons, this determines the case. The presumption is, that Daniel
We are referred to the discussion of the question involved in the case of Engle v. The State, 65 Md. 539, to sustain the decision in Straus v. Rost. The Engle case is one in which an action was brought on a testamentary bond to recover certain amounts claimed to be due on the distribution of an estate, by the several accounts settled in the orphans’ court. So, to begin on, whatever rule was adopted by the court was to govern the distribution of legacies, and it does not necessarily follow that it is applicable to devises. David Cassell devised certain real estate to his wife for life, with authority to sell the same; one-half of the proceeds to be distributed to the widow, and the other half to be equally divided among all his children, share and share alike, or their share to the children of such as may have died; and gave certain shares of bank stock to his wife for life; and after her death the same to be divided in like manner. Cassell died in 1861; his wife in November, 1875. One of his daughters married Josiah Geiger in 1862, and she died in May, 1863, leaving an only child, Joseph C. Geiger, for whose use the suit was brought. The real property was all sold before the death of the widow. Certain attachment proceedings were commenced against Joseph Geiger, the father, in his lifetime, he being at the commencement of such suits a non-resident of the state of Maryland. These suits resulted in judgments against him, and in judgments against the executors of the Cassell estate as garnishees. The executors paid, and sought to set up this payment for a defense to the action on the testamentary bond. The question was whether Joseph C. Geiger acquired his right to distributions sued upon, at the death of his mother, under and by virtue of the will of his grandfather, or solely through and under his mother, who died intestate. The court holds that he took under the will of his grandfather, and bases its ruling on a construction of the will, because it was clear that it was the intention that if a child died before the distribution,
Another case relied upon by the plaintiff in error is Rich v. Waters, 22 Pick. 563. It was a question about the distribution of thirty shares in the Oxford Bank; the wife of the testator was to have the use of them, and at her death they were to be equally divided between his heirs; the testator died, leaving several children; the creditors of the husband of one of the daughters of the deceased attempted by the process of foreign attachment to subject the interest of the wife to the payment of the husband’s debts, and the court, held that the reversionary interest of any one of the children in these shares was contingent on the death of the widow, and not liable to attachment in the hands of the executors. In the strict legal view there is no analogy between these cases. A testator can always fix a time at which the residue of his personal estate, after his debts, costs of administration, and maintenance of widow and minor children, are provided for, shall be distributed. Besides, a reversionary interest in personal property is not dependent upon a certain fixed thing, as a particular estate, but is an arbitrary creation of the testator, induced by the condition of his property, or his belief that certain personal property would be a good investment, or would increase in value within a given time, or many other such considerations.
The next case cited is that of Sears v. Russell, 8 Gray, 86, in which the property was willed to trustees, to be held by them in trust — and pay to Mary Ann during her life — and upon the decease of the said Mary Ann to grant and transfer the estate so devised in trust to the children of the said Mary Ann then living, and in default of any child or issue living, to convey the same to the heirs at law of the testator. The gift over to his own heirs was held to be an executory devise, and void for remoteness, as it violated the rule against perpetuities. The property in this case was devised to trustees,
In Richardson v. Wheatland, 7 Metc. (Mass.) 169, the devise was a life estate to the testator’s daughter Hannah and her husband George during their joint and.several natural lives, and at the death of both of them, to be divided among the heirs of said Hannah. At the death of the testator, Hannah and her husband George had no children living, but shortly after the death of the testator a child was born. So far as the child was concerned, this was held to be a contingent remainder during the life of Hannah, coming under the fourth head in the classification of Mr. Fearne, where the person to whom the remainder is limited is not yet ascertained, or not yet in being. We find no fault with the decision, except to say that in this state, the devise being to life tenants and their heirs, it would have to be governed by the construction that would be placed on § 52 of the chapter on wills, and this statement shows at once that the case decided is not the case at bar. The conclusion of the opinion in the case in 7 Mete. 169, is, “That the court are of opinion that the child of Mrs. Wheatland, and not her collateral heirs, was entitled to the estate; that this child has now a vested remainder expectant on the termination of the life estate of the father (the mother having died), and has the next immediate estate of inheritance.” The controlling reason in this case why the remainder was contingent, was because at the death of the testator Hannah and her husband did not have any children, and hence the contingency was a doubtful and uncertain one.
In Olney v. Hull, 21 Pick. 311, the remainder over to the
The case of Reinders v. Koppelmann, 68 Mo. 482, is a stronger case for the plaintiff in error than any yet cited. The testator gave a life estate to his wife Anna, and after her death the property then left shall be divided, one-half to go to an adopted daughter and the other half to the nearest lawful heirs of the testator and his wife Anna; and it is held that the word “heirs” has reference to those persons who would be heirs at the time of her death and not those who should be heirs-apparent at the testator’s death. This construction is based upon two distinct recitals indicative of the intention. The first was that the business should be carried on with his partners, and that no part of the real estate be sold or disposed of for twenty-five years; and the second was, “the property then left shall be divided.” The language used seems clearly to indicate that the heirship was confined to those living at the death of Anna. The expressions used are much stronger and more significant than the words of this devise.
The plaintiff in error then recites White’s Trustee v. White, Ky. Ct. App., 7 S. W. Rep. 26; Johnson v. Jacob, 11 Bush, 646; Evans v. Godbold, 6 Rich. (S. C. Eq.) 26; Hill v. Rockingham Bank, 45 N. H. 270; Ex parte Calmes, 1 Hill, (S. C. Ch.) 112.
We cannot devote any more space in this opinion to our own criticism of the cases cited by the plaintiff in error. On page 595, 2 Washburn on Real Property ( 5th ed.), there is a criticism on the doctrine of the New Hampshire cases, that may apply to the case of Hill v. Rockingham. In a note it is said:
“In view of the prevalent disposition of the courts to hold remainders vested, rather than contingent, upon grounds of general policy, it may seem somewhat remarkable that the*445 courts of New Hampshire have recently adopted a principle of contingency in respect to remainders, which does not appear to have been heretofore recognized in other quarters, or even, to a casual observer, to find support in the authority on which the doctrine is said to rest. The principle is this, that where an estate is limited to one for life, or during his natural life, and after his decease, to another, though an ascertained person then in being, there is such a possibility of the first taker committing a forfeiture of his estate, or surrendering it, or its merging in the inheritance during his life, that the remainder over is a contingent, and -not a vested, one. And this, too, while so many of the states are discarding the doctrine of contingent remainders being affected by defeating the particular estates on which they rest. In the case referred to, of Hall v. Nute, 38 N. H. 422, approved of as settled law in Hayes v. Tabor, 41 N. H. 521, the facts were these: A devise to Esther Tuttle for life, after her death to William Tuttle, his heirs and assigns.”
The court holds that “William Tuttle’s attempt to release his interest in the land to E.T. conveyed nothing, and did not estop him from claiming the land after E.T.’s death, because the remainder to William was a contingent one.”
Chancellor Kent, on the other hand, in illustrating by example what would be a vested remainder, says:
“A grant of an estate to A. for life, with remainder in fee to B., or to A. for life, and after his death to B. in fee, is a grant of a fixed right of immediate enjoyment in A., and a fixed right of future enjoyment in B.” (4 Kent’s Com. 202.)
So Mr. Butler, in his note to Eearne on Remainders, (p. 2,) says:
“If A. convey or devise to C. for life, and after C.’s decease to B. and his heirs, B.’s estate is vested in him in interest.”
In Carter v. Hunt, 40 Barb. 89, the devise was as follows:
“I give and devise to J. M. the house and lot I now occupy, tobe used and enjoyed by him during the term of his natural life; and from and immediately after his decease I give and devise the same to S., the daughter of J. M., her heirs and assigns forever.”
And it was held that S. took a vested remainder.
Washburn on Real Property, 2d vol., p. 587, gives these ex-
The supreme court of the United States define a vested remainder as follows: “ When a present interest passes to a certain and definite person to be enjoyed in futuro.” (Doe v. Considine, 6 Wall. 474.) The possibility that the person to whom the remainder is given may die in the lifetime of the life tenant, does not make the remainder contingent, for it is certain that the remainder might take effect upon the termination of the life estate at any time. (Kemp v. Bradford, 61 Md. 330; McArthur v. Scott, 113 U. S. 430; Weston v. Weston, 125 Mass. 268; Moore v. Lyons, 25 Wend. 119; Com. v. Hachkett, 102 Pa. St. 505.) A grant to W. for her life, and at her decease to be and become the property of her children and their legal representatives, is a present vested remainder in her children, and one of them having died in W.’s lifetime, his share went to his heirs. (Gourley v. Woodbury, 42 Vt. 395; Com. v. Hackett, 102 Pa. St. 505.) A devise to A for life, and at her death to her oldest son, if she have one: she then had a son living who was living at the testator’s.death;
These citations are enough to show the general drift of judicial decisions bearing more or less on this question. The stress laid upon the word “then” in this will, and the contention of the plaintiff in error respecting it, must be more critically examined. One of the considerations urged is, that by the use of this word in the connection in which it is placed, it was the intention of the testator to limit the inheritance to only such of his heirs as were living at the death of Nancy. Another suggestion is, that during the life estate of Nancy the fee was in suspense. Another is based upon the fact that at the making of the will there was an absent sou, and the uncertainty as to whether he was living or dead, induced the expressions used, so that the inheritance would remain open until the death of Nancy. While all these are included in one general rule determining the characteristics of the remainder, they may be considered as separate facts illustrating the operation of the rule. In any view they are not important or controlling, for the very good and unanswerable reason that after the life estate of Nancy Bunting was spent by her death, the property would have descended in the exact manner prescribed in the will, by the operation of the statute on descents and distributions. Under that statute the real and personal property of the testator, at the death of Nancy, would go to his legal heirs in the same manner, to the same extent, and in like proportions as stated in the will. So that in this case there is no necessity to resort to those refined distinctions that sometimes arise out of the attempt of testators to divert their property out of the statutory channels, in case of their death. Either under the will or by the law the same result is reached: the property goes to the legal heirs. There is not a suggestion made or a reason urged by the plaintiff in error, based upon the peculiar phraseology of this will, and the absence of his son, indicating an intention to protect the interest of the absent-son, which cannot be rendered just as effectual by holding the
If we should hold this to be a contingent remainder, the descent, or the rule of descent, or the portion of the estate that each heir would be entitled to, would not or could not be changed. There is but one right to be affected by any decision that we could make in this case as now submitted to us, and that is the right of the plaintiff in error to recover possession of the land. If it is a contingent remainder, it is doubtful under the laws of this state whether it could have been alienated by the father of the plaintiff in error; and if not, he would recover the right to the possession of whatever interest we might determine he was vested with. If it was a vested remainder, his father conveyed it for a valuable consideration. So that we cannot escape the responsibility of declaring in express terms the character of this remainder, whether contingent or vested. If we can satisfy the words of' this will by a declaration that this is a vested remainder, it is our duty to say so. If this declaration will give the direction to the transmission of this estate that it was the intention of the testator to give, the rules of construction require us to say so. There is a well-settled rule of law that a devise to an heir of the same estate in nature and quality as that to which he would be entitled by descent, is void. In such cases the heir takes by descent, and not as a purchaser. If this rule applies to the present case, then it would follow that the gift over to the heirs-at-law would fail as a remainder, so that their title would not depend upon the rules governing estates of that nature. This rule is not affected by carving out of tl*e fee a prior particular estate; all that is necessary to the operation of the rule is, that when the estate vests in the heirs they shall hold it by the same tenure and in like manner as if the devise had never existed. (1 W. Bl. 187; Crosley’s Treatise on Wills, 101; 4
From these considerations it is apparent that we cannot give the word “then,” as used in this will, the construction desired by the plaintiff in error. It means as used, “in that event,” referring to the death of Nancy the life tenant. Neither is it material that descend means “vest,” because, as the controlling desire of the testator was, according to the
If the construction contended for is adopted, and we should hold that only such heirs of Michael Bunting as were living at the death of Nancy could take the fee, and with it the possession of the estate, the controlling intention of the testator as alleged in support of such construction would be de
In case of a gift to a class such as “children,” or “heirs,” all of the class need not .be in existence in order that the remainder may vest in any. The remainder may vest in those who are in existence, subject to open and let in those who afterward come within the class. (In re Lechmore v. Loyd, 18 Ch. D. 524; Farrow v. Farrow, 12 S. C. 168; Stonebraker v. Zollickoffer, supra.)
The theory of our statutes on conveyances, descent and distribution, and other subjects affecting in any manner the title to real property, is, that on the death of a person who dies seized in fee of lands, the fee descends and immediately vests in his heirs. Even equitable interests in real property are subject to levy and sale. In a word, almost every effort has been made by the legislature of this state to relieve the title to real property within our borders from all perplexing entanglements, and to produce a system whose operations are safe and natural, and easily understood by the ordinary mind. The great body of the lands but a few years ago was owned by the government. Our titles are derived principally from the operation of the homestead and preemption acts. The process by which the title is acquired from the government is prescribed by acts of congress, expressed in plain language, and unusually free from doubtful meaning. These titles have all been acquired in less than one-third of a century; but in that time our people have become habituated to the use of a few simple, plain requirements, as to the conveyance of land and evidences of title, and we do not propose to engraft on such a system rules of construction that will cause that un
We are not disposed ,to disguise the fact that in holding this to be a vested remainder, we are not in the current of the adjudicated cases, for most of them have been governed by the rules that arose out of that excessive refinement respecting estates in remainder, that has been the cause of so much complaint; but by this ruling we add our mite to the attempt to simplify the differences, and multiply the cases in favor of vested remainders. Whether the rule we have now established in this state will make the distinction ordinarily plain and easily, comprehended, and at the same time operate equitably upon all persons affected thereby, and harmonize with the general aim and definite policy of our laws respecting real property, time alone can determine.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
The only question involved in this case is: What is the true construction or interpretation of the following words found in the last will and testament of Michael Bunting, deceased? The words are: “Then they are- to descend to my legal heirs.” The clause of the will in which these words are found, reads as follows:
“Second. I will and bequeath to my beloved wife, Nancy Bunting, after all my just debts and liabilities are paid, all the rest of my estate, real and personal, to have and hold them, together with all rights and privileges thereto belonging, during her lifetime, and then they are to descend to my legal heirs.”
When Michael Bunting died, of course all his interest in his land passed from him, and the title thereto necessarily went
I concur in affirming the judgment of the court below.
Concurrence Opinion
I concur in the conclusion reached, and in. the judgment of affirmance.