100 Va. 649 | Va. | 1902
delivered the opinion of the court.
This attachment proceeding in equity was instituted by the appellee against the appellant, Mary E. Howbert, formerly Mary E. Thomas, a non-resident, alleging that appellant was entitled to an estate in remainder in certain 'real estate, and asking that the same might be subjected to> the payment of'a debt evidenced by bond executed by appellant to G-. T. Gauthorn, and by him assigned to the appellee.
It appears that by deed of July 9, 1862, John E. Sale and wife conveyed to John Frederick Thomas, the father of appellant, certain real estate, in Bedford City, upon trust, for the use of his wife, Lucy Ann Thomas, for life, with remainder, “in fee simple to the children of the said John Frederick Thomas and the said Lucy Ann Thomas, living at the death of the said Lucy Ann Thomas, aiid the descendants of such as may be dead, in equal shares by slocks, and if there be no such •child op children, nor descendants of any such living at the death of the said Lucy Ann, then the said John Frederick Thomas, if living, shall stand seised of said lot or parcel of land . ... in fee simple to his own use; and if dead, the same shall vest in fee simple in the heirs at law of the said John Frederick Thomas
John Frederick Thomas died, leaving surviving him his wife, Lucy Ann Thomas, the life tenant, and two children, -who were born to John Frederick Thomas and Lucy Ann, prior to the execution of the deed of July 9, 1862; namely, Mary E. Howbert, the appellant, and her brother, J. Walker Thomas, both of whom are still living.
It is true that the law prefers vested to contingent remainders, and this preference may lawfully and properly influence the mind in cases of doubtful construction; but it can never justify the courts in making a deed or will, or in straining the language used in order to make the estate created a vested rather than a contingent remainder. Olney v. Hull, 21 Pick. (Mass.) 311; Vashon v. Vashon, 98 Va. 170. In obedience to this disposition in favor of vested remainders this court has held, where the question involved was the period to which words of survivorship related, that, in the absence of the expression of a particular intent, the survivorship has relation to the deatli of the testator. Martin v. Kirby, 11 Gratt. 67. And in Hansford v. Elliott, 9 Leigh, 79, Judge Parker, in determining whether the words surviving children should be taken to refer to the period of the testator’s death, or to the death of his widow, the tenant for life, says: “If to the former, the interest vested in all of the testator’s children living at his death, and passed to their representatives, the time of distribution being alone postponed; if to -the latter, then Elizabeth and Peter Manson, who alone survived the life tenant, were entitled to the whole property.”
In the case at bar the language of the grantor is perfectly
The only way in which the remainder.in favor of appellant could be considered vested would be by construing the words of survivorship (“living at the death, etc.”) as creating a condition subsequent, instead of precedent, this latter being plainly the nature of the condition in the case at bar, both on principle and authority. Very often a remainder will be construed to be a vested estate upon a condition subsequent liable to be divested by the happening of the contingency, rather than declare it to be a contingent remainder, as it would be if the condition were precedent. Graves on Heal Property, p. 194, note.
Professor Graves, in his work on Heal Property, after pointing out that, in considering a remainder, we must assume that it still exists as a remainder, and judge of its character as vested or contingent under the facts as they are at the moment the ques
In 20 Am. and Eng. Ency. of law (1st ed.), pp. 841, 842, we find the following very clear statement of the law bearing upon this question: “The fact that the remainder from the very instant of its creation is capable of taking effect in possession or enjoyment at any moment the possession or enjoyment may become vacant by the determination of the particular estate does not, as is frequently asserted, necessarily show that it is vested; nor yet is it quite accurate to say that ‘When it is certain that the remainder may take effect in possession, on the determination of the preceding estates of freehold, at whatever time and however early, and by whatever means, these estates may determine/ the remainder must be considered as vested. Thus if an estate be limited to two for life, remainder to the survivor of them in fee, the remainder is contingent, for until one of them die, it is uncertain which will be the survivor; or if .the land be limited to A for life, remainder to ‘such of his children as shall be living at his decease,’ each child has but a contingent remainder during A’s life, since until his death it is impossible to tell which of the children will answer the description, and yet, inasmuch as under both these limitations the person or persons who are to take are ascertained immediately on the determination of the particular estate, the remainders may well be said to be capable of taking effect in possession or enjoyment at any moment the possession or enjoyment may become vacant by the death of the life tenant, and may even be said to be certain to take effect on that event unless the remainder-men predecease the life tenant. A moment’s consideration shows that the apparent anomaly arises from the fact that whether the remainders will ever take effect in possession really depends upon! two contingencies, (1) Whether the remainder-
The law touching the nature of vested and contingent remainders is stated in Washburn on Beal Property as follows: “ ‘The present capacity of taking effect hi possession, if the possession were now to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent.’ By capacity, as thus applied, is not meant simply that there is a person in esse interested in the estate, who has a natural capacity to take and hold the estate, but that there is further no intervening circumstance, in the nature of a precedent condition, which is to happen before such person can take. As, for instance, if the limitation be to A for life, remainder to B, B has a capacity to take this at any moment when A may die. But if it had been to A for life, remainder to B, after the death of J. S., and J. S. is still alive, B can have no capacity to take till J. S. dies. When J. S. dies, if A is still living, the remainder becomes vested, but not before.”
The author, in further considering the fa«t that a remainder is contingent by reason of the person who is to take it not being ascertained, says: “Thus upon a devise to A for life, remainder to the surviving children of J. S., it is obvious that, in terms, it
It will be observed that the learned author treats the remainder as contingent, without question, when the period of survivorship relates to the death of the life tenant. In such case he says: “The remainder must he contingent, since no one can tell who will he such survivors, until the death of A,” the life tenant.
In Olney v. Hull, 21 Pick. 311, a testator, after devising to his wife the use of his real'estate, while she remained his widow, proceeded as follows: “Should my wife marry or die, the land then shall be equally divided among my surviving sons, with each son paying sixty dollars to my daughters, to be equally divided among them, as soon as each son may come into possession of said land.” It was held that the remainder given to the sons was contingent until the marriage or death of the widow of the testator; and that upon her death, the estate vested in a son who was then living, to the exclusion of the heirs of another son who died before the widow, but after the death of the testator. See also Blanchard v. Blanchard, 1 Allen, 223; Ducker v. Burnham, 146 Ill. 9; In Re Rider, 11 Paige, 185; Stump v. Findlay, 2 Rawle, 168; Watson v. Smith, 110 N. C. 6 (14 S. E. 640); Nicholson v. Cousar, 50 S. C. 206, 27 S. E. 628; Henderson v. Peachy, 3 Leigh, 68; Baylor v. Dejarnette, 13 Gratt. 152; Wallace v. Minor, 86 Va. 550; Robinson v. Robinson, 89 Va. 916; McComb v. McComb, 96 Va. 779.
The very earnest contention that the estate in question is a
George S'. Yashon had a numerous family of children, some of whom died during his lifetime unmarried 'and without issue. The contention was that the children of George S. Yashon, living .at the date of the deed, took a vested remainder, but this court denied that claim, and held that said cMldren took contingent remainders which were defeated upon their death without issue during the life of George S. Yashon; that the interest of the children, under the deed, was dependent upon their being alive at the death of their father, who survived Martha Y. Yashon, a contingency which never 'happened, and that therefore tliey had no estate wMoh their father could inherit. Graves on Real Prop., supra; Price v. Hall, L. R., 5 Eq. 399;. Augustus v. Seabolt, 3 Metc. (Ken.) 155; McCraw v. Davenport, 6 Port. (Ala.), 319; Nash v. Nash, 12 Allen, 345.
Inasmuch as Lucy Ann Thomas, the life tenant in the case
The second branch of the case involves the question whether >or not such an unsubstantial and shadowy right as that Held by tbe appellant can be subjected to sale for the benefit of her creditors. Such an interest is a pure contingency—a bare possibility whether it will ever exist or not. During the life of Lucy Ann Thomas such lan interest hardly arises to the dignity of an estate. On the part of a purchaser, at a judicial sale, it would be a perfect hazard, for it could not be known to anyone whether the supposed interest, being sold, would ever be of any value. It would be a mere speculative transaction and ruinous in its consequences, not only to the creditors, but to all parties interested. It bas not been, that we axe aware of, the practice to offer at public auction such an interest for the satisfaction of debts, nor do we think that such ia practice should be established. See Watson v. Dodd, 68 N. C. 528; Watson v. Watson, 3 Jones Eq. 400; Jackson v. Waldron, 12 N. Y. Com. Law, 176; Breeding v. Davis, 77 Va. 639; Young v. Young, 89 Va. 675. In Watson v. Dodd, supra, it was 'held that the contingent interest of one of the devisees, expectant upon the death of the life tenant without issue, could Hot be subjected to ttbe payment of His debts. In Watson v. Watson, supra, tbe court declared that, the land being limited by way of contingent remainder to persons not in esse, it bad no power to order a sale for the purpose of converting it into more beneficial property. The principle involved is analogous to that decided in the recent case of Boisseau v. Bass, ante p. 207, where it was held that the interest of an assured in a policy on his life which has no present market value, but is dependent' for its continued
Eor these reasons we are of opinion that the decree appealed from should be reversed, and a decree entered here sustaining the demurrer, and dismissing the bill filed by the appellee with costs.
Reversed.