| N.H. | Jul 15, 1859
Was the remainder limited to William Tuttle vested or contingent ? The land is devised to Esther Tuttle as long as she lives, and after her decease to William Tuttle as long as he lives a natural life, and no longer, and after his decease to his heirs. William Tuttle under this devise could not take the estate limited to him in remainder until the death of Esther Tuttle. If her estate were destroyed during her life, by forfeiture or by sui’render and merger in the inheritance, the remainder limited to William Tuttle could never vest in possession, though he might survive his mother, because there would be no particular estate to support the remainder. If the remainder had been limited on the life estate of Esther Tuttle, then, whenever that estate determined, whether by her death or otherwise, William Tuttle, while he lived, would have been an ascertained person qualified to take, and the remainder would have been a vested and not a contingent remainder. But this remainder is not limited to take effect on the determination of Esther Tuttle’s estate for life, but can only take effect on and after her death; and this makes the remainder contingent.
A person devised land to his son, J. L., for the term of his natural life, and after his decease unto the heirs, male and female, of the said J. L. J. L., after the death of the testator, entered and suffered a recovery. The court held that J. L. had only an estate for life, with a remainder in fee to his heirs, male and female, and that the remainder, being contingent, was destroyed by the recovery. Doe v. Holme, 2 W. Bl. 777. This is an authority in point to show that the remainder limited to William Tuttle was
When William Tuttle conveyed to his mother, on the 17th of December, 1839, he had no vested estate; his deed purported to be a mere release or quitclaim of all his title and interest in the land, and conveyed nothing. A vested remainder may be conveyed by deed, operating on the estate at the time when the deed is made, but not a contingent remainder. The deed of William Tuttle, being a mere release, conveyed nothing, and would not estop him or his heir to claim the land on the death of his mother. Hall v. Chaffee, 14 N. H. 215; 4 Kent’s Com. 261.
Supposing the rule in Shelley’s case to be in force here, it does not apply to the present case ; for the remainder limited to William Tuttle, being contingent, his deed made in his mother’s lifetime conveyed nothing; and as he dic^Jn the lifetime of his mother, upon her death the remain(||p,limited to the heirs of William Tuttle, vested in them. As William Tuttle was twenty-one years of age, and died unmarried, his heirs under our statute would bo his mother and his surviving brothers and sisters.
It would seem to be unnecessary to inquire whether the rule in Shelley’s case was ever adopted in this State ; because the remainder, limited to William Tuttle, never vested in him so as to give his conveyance operation ; and if the rule in Shelley’s case applies, his heirs take by descent from him. If that rule does not apply, then his heirs take the same estate as purchasers under the will by the name of heirs, as a description of the persons entitled under the limitation in remainder.
James Tuttle had died, and his share went to his mother and his surviving brothers and sisters, as his heirs; and the heirs of William Tuttle were his mother and his eight surviving brothers and sisters. As Dorothy Tuttle, the defendant’s mother, died after the statute of 1845 was passed, he under that statute would be heir to his mother,
Judgment that the demandants recover one undivided ninth part of the demanded premises.