Drury v. DruryDrury v. Drury
delivered the opinion of the .court:
On April 24, 1893, Richard Drury made his last will and testament and by the second and third clauses provided for his wife,.Mary Drury, who afterward, as his widow, renounced the provisions made for her. The sixth clause was as follows:
“Sixth — I give and bequeath to my grand-daughter, Myrtle A. Drury, the life use of the following piece of land, to-wit, [describing it,] to have, hold, use and enjoy 'the same during her natural life. At her death the fée simple title to all of said lands shall pass to and-become vested in the heirs of her body, and in case of her death without a child or children the title thereto shalhbecome so vested in my great-grandchildren, and all of said land so willed to her shall be subject to the payment of one-third of the rents, issues and profits thereof, after payment of taxes and repairs, to my wife, the said Mary 'Drury. And the said last described piece of land, of about seventy-seven and 30/100 acres,. shall be subject to the payment of one-half of such rents, issues and profits thereof to my daughter, Mary J. Huggins, during her life.”
The testator died on April 28, 1899, leaving Mary ■Drury, his widow, his children, Mary J. Huggins and William W. Drury, and his grandchildren, Myrtle A. Drury and Lydon R. Drury, children of his deceased son, Robert I. Drury, his heirs-at-law. When the will was made the testator had no great-grandchild, but at his death there was a great-grandchild, Gertrude M. Dineen, capable of taking the estate limited to great-grandchildren, and who died on or about November 8, 1899, during the continuance of the life estate. Myrtle A. Drury, the life tenant, died intestate about August 21, 1912, without a child or children. At the time of her death there were two great-grandchildren of the testator, Harriet A. Drury and Richard J. Drury, children of Walter C. Drury, a grandson; and Marian Drury, another child of Walter C. Drury, was afterward born. The appellees, Lydon R. Drury, Lily A. Beeken and William W. Drury, three heirs-at-law of the testator, filed their bill in this case in the circuit court of White-side county for partition of the land described in the sixth clause, making the appellant Bessie May Drury, the present owner of any interest which passed to her deceased daughter, Gertrude M. Dineen, and the appellants Harriet A. Drury and Richard J. Drury, great-grandchildren of the testator who were living at the termination of the life estate, and others interested as heirs or otherwise, defendants. Bessie May Drury by her answer alleged that at the death of the testator Gertrude M. Dineen became the owner of the entire remainder after the life estate, contingent only upon the life tenant dying without a child, which contingent remainder descended to her father and mother and had become vested in her mother, said defendant. A guardian ad litem was appointed for the infant defendants, Harriet A. Drury, Richard J. Drury and Marian Drury, and they answered by their guardián ad- litem. The chancellor heard the evidence and entered a decree finding that the sixth clause 'of the will was void because in violation of the rule against perpetuities; that the lands descended to the heirs-at-law of the testator as intestate estate, subject tó the dower of the widow, and appointing commissioners to assign dower and malee partition. Bessie May Drury was allowed and perfected an appeal, and the guardian ad litem of Harriet A. Drury and Richard J. Drury also appealed in their behalf.
The rule against perpetuities is, that no interest subject . to a condition precedent is valid unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest. It is not enough that the contingent event upon which the estate is limited may happen, or even that it will probably happen, within the limits of the rule, but if it can possibly happen beyond those limits the interest is too remote and its creation prohibited by the rule. (Howe v. Hodge,
The gift of the remainder to the great-grandchildren of the testator was a gift to such persons as should bear that relation to the testator, to be ascertained at some future time. It is contended in behalf of Bessie May Drury that the class was to be ascertained at the death of the testator, and Gertrude M. Dineen being the only member of the class-at that time; became entitled to the remainder upon the happening of the contingency upon which it was limited, and that such contingent remainder' was descendible and upon the happening of the contingency vested in said Bessie May Drury. The gift to the class was not, in terms, immediate, but the testator provided that upon the death of the life tenant without a child or children the title should become vested in his great-grandchildren. It is true that while a contingent remainder cannot be granted and nothing passes by a deed of' it, although no legal estate is conveyed, the estate may be transferred by a warranty deed by way of estoppel if the contingency happens upon which the estate is to vest. Such a remainder may be released to the life tenant or his assignee and is assignable in equity as an ex-ecutory agreement, which may be enforced whenever the title vests, and it is devisable under the Statute of Wills. (Ortmayer v. Elcock,
The bill of complaint prayed for the cancellation of a deed from William W. Drury to his three children on the ground that it was never delivered, and the finding was to the contrary. Cross-errors have been assigned on the finding, but as the complainants have no interest in the premises, the deed, whether delivered or not, conveyed nothing.
The decree of the circuit court is reversed and the cause is remanded, with directions to dismiss the bill.
Reversed and remanded, with directions.