| N.H. | Jan 15, 1859
By the provisions of the last will of Amos Tenney, upon his death in May, 1839, there vested in his daughter, Emeline E. Tenney, a right to one fourth of the residue or remainder of his estate, real and personal, after payment of his debts, funeral charges, expense of gravestones, and the several legacies enumerated in the first and second clauses of that will, subject to the life estate of his widow, Lucy R. Tenney, therein. This interest of Emeline E., under the will of her father, being an immediate, fixed right of future enjoyment of the fourth of the remainder of her father’s property, after the decease of his widow, was a vested remainder, descendible to her heirs in the event of her death, and capable of being devised, assigned or limited over by her, by any instrument properly executed for that purpose, to any uses, and made subject
Being seined of this interest in her father’s estate under his will, on the 27th of April, 1840, in contemplation of marriage with John S. Spalding, she undertook, by her deed of that date, in which said Spalding joined, to place this, her estate in remainder, in the hands of a trustee, and to limit and appoint the uses to which it should be applied in the life time of herself and contemplated husband, and to determine to whom it should descend upon the fulfilment of those uses. She was herself, by the terms of that deed, to receive to her separate use the income of that estate during her own life, and after her death the same was to be received by said Spalding during his life ; and upon his death the estate itself was to go to her children, or to her legal representatives. The effect of this conveyance by Emeline E. was to vest in her trustee, under the deed, the legal estate before vested in herself, and to convert the same from an immediate fixed right of future enjoyment, as it had been in her hands, into a contingent interest, in the hands of her trustee, dependant on the priority of the death of herself or said John S. Spalding, and also upon the uncertainty whether or not any child or children of herself might exist at the death of said Spalding, in case he should survive her. By the express terms of the deed, if her intended husband died before she did, the estate was thereupon to revest in herself. If she died before her intended husband, he was to receive the income during his life, and then the estate was to pass to her children, if any then lived, or the children of any of them ; otherwise, it was to revert to her own legal representatives. After this assignment of her interest in the residue or
Upon the birth of Emeline’s child, the equitable title to this contingent interest did not vest in that child, because it was then uncertain, not only whether she might not survive her husband, so as herself to take the estate, but also whether the child would survive its father, so as itself to be entitled to it. This latter uncertainty continued after the death of Emeline; but the child having deceased before the termination of the life estate of John S. Spalding, its interest was forever gone, and the equitable interest, before contingent in the child, at once passed to the legal representatives of Emeline, because they had then an absolute, fixed right in equity to the future enjoyment of the estate, upon the death of John S. Spalding and Lucy N. Tenney. It was, however, still a matter of uncertainty who might be the legal representatives of Emeline, at the death of Spalding; but when he died, the contingent remainder at once vested in the legal representatives of Emeline, subject to the life estate of Lucy It. Tenney. These were her sister, Lucy E. Pomroy, and her brother, Amos J. Tenney. On the death of Amos J. Tenney, in 1855, his reversionary interest in Emeline’s share of the remainder of her father’s estate, subject to the life estate of Lucy It. Tenney, under the provisions of the trust deed, descended to his sons, Edward J. and George P. Tenney, who were thereafter the legal representatives of Emeline,
As John S. Spalding died before the decease of Lucy B. Tenney, and Ormond Dutton, the trustee, never received any portion of the property, and does not now claim to interfere in any way with the estate, he may be considered as having waived his legal right to have the funds pass through his hands, and the same may properly be paid directly to the cestuis que trust. Eearne on Bemainders ; Preston on Estates; Hilliard’s Abridgment, and other authorities before cited.
The decree of the judge of probate, under the circumstances of the case, should have distributed one half of Emeline E. Tenney’s fourth of the funds in the hands of the appellee, to her sister, Lucy E. Pomroy, and the other half thereof to her two nephews, Edward J. and George P. Tenney, to be shared equally between them, instead of distributing the whole thereof to the administrator of her deceased husband, John S. Spalding. It must, therefore, be reversed, and a new decree entered instead thereof, distributing $902.13 of the balance of $2,405.70, in the hands of the appellee, to Lucy E. Pomroy; $601.42 to Erastus Glidden, administrator of Amos J. Tenney ; $150.35|- to Edward J. Tenney; $150.35-J to Charles M. Bingham, guardian of George P. Tenney; $120.28 to the Domestic Missionary Society ; $120.28 to the American Bible Society, and $120.28 to the American Education Society; to be paid over to said several distributees upon and according to the terms of the original decree.
The construction and effect we have given to Emeline E. Tenney’s deed of trust seem not only imperatively demaded by the language of that instrument, but alone capable of carrying out her clearly expressed intention of so vesting her interest in the remainder of her father’s
As the appellants have prevailed in the whole subject matter of appeal, they are, of course, entitled to costs, as the prevailing party.
Decree of judge of probate reversed.