| New York Court of Chancery | Jan 22, 1838
It does not appear upon what ground the vice chancellor denied the appellant’s application ; but 1 i i * * presume it must have been upon the ground that the defendant Hall had not distinctly and explicitly denied the charge of fraud as contained in the bill. It appears to me, however, that the complainants did not intend to swear to the charge of fraud in so direct and positive a manner as to entitle them to a preliminary injunction, interfering with the rights of Hall, on that ground ; although it may be a sufficient averment in pleading to put the fact in issue, so as to authorize them to introduce proof on the subject, if the fraud should not be admitted by the defendants. There is no fact charged in the bill, or admitted in the answer, from which it is possible forme to form any opinion whether the $12,000 was either more or less than the value of Wm. Bayard’s contingent interest in the reversion of this stock. That value must depend upon the probability which existed in 1832 of a renewal of the charter of the Bank of the United States; without which it could not well be presumed that W. Bayard’s interest in the stock, even if he survived Mrs. Leake, would be any thing more than the par value thereof. And to form any opinion of the value of this contingent remainder, depending on the chances of survivorship, it is necessary to know what were the ages and the state of health of the several parties; .so as to be able to calculate not only the chances of survivorship but also what then was the probable period of the continuance of the life estate of Mrs. Leake. A knowledge of the actual death of Mrs. Leake in 1836, and of the value of the stock at that time, when such value had been greatly increased by the result of a popular election in Pennsylvania, do not aid us in the least in determining the value of W. Bayard’s contingent interest four years previous. The amount paid for Robert Bayard’s contingent interest, and whether the payment was in money or otherwise, are matters of no consequence here, except so far as the amount paid by Hall shows what he supposed Robert’s chance of being the survivor at the death of Mrs. Leake really was. Upon the face of this bill, therefore, I cannot see that the . right of Hall to the one-fourth of the 600 shares of bank
There is no foundation for the objection that the interest of W. Bayard was of such a nature that it could not pass by sale or assignment before the death of Mrs. Leake. It was not a'mere naked possibility, or even a mere possibility coupled with an interest; but it was a vested remainder in one-fourth of the 600 shares of the bank stock, according to the statutory definition of vested remainders. For W. Bayard was the person in being and ascertained who would, at the time of the assignment in 1832, have had an immediate right to the possession- of such bank stock if the life estate of Mrs. Leake therein had then ceased. (See 1 R. S. 723, § 13.) He was the oldest son; to whom this remainder in fee was limited, subject only to be divested by his death during the continuance of the particular estate or interest of Mrs. Leake and in the lifetime of his brother Robert. The limitation of the remainder in fee to W. Bayard was therefore vested in interest. But I admit the substituted remainder to Robert necessarily remained contingent so long as his elder brother was living. Nothing could defeat W. Bayard’s right to the bank stock or its proceeds as an interest in possession, if he continued to live until the life interest of Mrs. Leake terminated. And it is the present capacity of the individual to take the remainder in possession, if the particular estate should immediately determine, which vests his remainder in interest; and not the absolute certainty that such remáinder will ever in fact become vested in possession in him. (Per Nelson, C. J. 16 Wend. Rep. 137. Watk. Law of Conv. 123, 8th Lond. ed. 5 Paige’s Rep. 466.) And nobody ever doubted that a
. . , , . Again; the revised statutes, which were m operation wben this sale was made, have declared in express terms, that expectant estates are descendible, devisable and alienable, in the same manner as estates in possession. (1 R. SL 725, § 35.) And by an examination of the several provisions of the revised statutes it will be seen that by the term “ expectant estates” the legislature intended to include every present right or interest, either vested or contingent, which may by possibility vest in possession at a future day. The mooted question, whether a mere possibility coupled with an interest is capable of being conveyed or assigned at law, is therefore forever put at rest in this state.
Besides; there never was a doubt that any interest whatever in personal property, or a mere possibility coupled with an interest in real estate, was assignable in equity. (Whitfield v. Fausset, 1 Ves. sen. 391. Wright v. Wright, Idem. 411.) And if the contingent interest in this stocky passed even in equity to Hall, under the assignment of 1832, his prior equity must prevail; as the complainants could not acquire any equitable lien upon property of this description until the filing of their bill here, in 1836. (Beck v. Burdett, 1 Paige’s Rep. 305. Edgell v. Haywood, 3 Atk. 857.)
The question whether the complainants can reach the amount due upon the several notes which remained unpaid at the time of the commencement of this suit, is not now before the court on this appeal. If they belonged to W. Bayard at that time, Hall certainly could not safely pay them to him after he had notice of the equitable lien which the complainants had acquired by the filing of their bill. But as the notes were negotiable, if they had been transferred to a bona fide holder before that time, or if he is obliged to pay them to a bona fide holder to whom they have been since assigned by Bayard in violation of the injunction, Hall cannot be compelled to pay them the second time. Even if the notes are still under the control of W. Bayard, or in the hands of a receiver appointed in this cause, that cannot affect Hall’s right to the bank stock, before the notes have
The order of the vice chancellor must therefore be reversed with costs; and the injunction must be so modified as to permit the executors of Leake to transfer the bank stock, or the proceeds thereof, to the appellant, or to his assignees or mortgagees.