123 Iowa 297 | Iowa | 1904
The vital question argued is whether the remainder devised to Jonathan M. Morris by the clause of the will under consideration was vested or contingent. If vested it is practically conceded by the appellant that a. conveyance of the life estate and the remainder would pass to the grantee an absolute estate. The appellant also concedes that the first sentence of the clause, considered alone, would vest the remainder in the son immediately upon the death of his father, but contends that the subsequent language of the clause created a contingent remainder. “The true criterion
Nor was it necessary to the vesting of the remainder that Jonathan'M. Morris survive his mother. “It is the present, fixed right of future enjoyment whenever tne possession becomes vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determined, that distinguishes a vested from a contingent remainder. When the event on which the pending estate is limited must happen, and when, also, it may happen before the expiration of the estate limited in remainder, the remainder is vested.” Kennard v. Kennard, supra; 4 Kent, 202, 203; 2 Washburn Real Property 228. It is therefore apparent that the remainder vested notwithstanding the language of the will, which, it is argued, created a contingent remainder. There is nothing in the language itself manifesting an intention to postpone the gift, and it is the general rule that a “limitation will never be construed as creating a contingent remainder if it can possibly be construed as creating a vested one.” Tiffany on Real Property section 121; 2 Underhill, section 861. The latter author says, under the rule “by which a modern will speaks as of the date of the death of the testator, every gift to a person who is alive at
The judgment is therefore aeeirmed.