McElwee v. Wheeler

| S.C. | Nov 22, 1878

The opinion of the Court was delivered by

McIver, A. J.

The land in controversy in this case was devised “ to Agnes McElwee, to her own use and possession during her natural lifetime, and at her death to any child or children she may have living at the time of her death; but if she should die not leaving any children or child alive at the time of her death, then, and in that case, the said tract of land and the before named negroes, with their future increase, together with the other property herein bequeathed to my daughter Agnes, shall revert and go back absolutely and unconditionally to any brothers and sisters and the children of any deceased brother or sister residing in this State at the time of her death, &c.” At the time of testator’s death, which occurred on the 15th November, 1854, Agnes was unmarried-, but she subsequently intermarried with one James McElwee and died on 20th September, 1875, without ever having had a child. Subsequent to her marriage she joined her husband in making a deed of feoffment and livery of seizin to one Samuel A. McElwee, conveying the land in dispute in fee, which deed bears date the 29th September, 1857. Samuel A. McElwee then conveyed the land to James McElwee, and he to the defendant, Wheeler. The plaintiffs and all of the defendants, except Wheeler, are the brothers and sisters of Agnes, and children of deceased brothers and sisters who were residing in the State at the time of the devise and death of the testator, and continued so to reside in the State until after the death of Agnes. The questions presented are: 1st. Whether the limitation to the brothers and sisters constituted a vested or a contingent remainder. 2d. If contingent, was the deed of feoffment and livery of seizin sufficient to bar such remainder? The Circuit Judge held that it was a contingent remainder and that it was barred by the deed of feoffment.

We think that the conclusions reached b^ the Circuit Judge are correct, and are so fully sustained by his reasoning and the authorities which he has cited that it is scarcely necessary for us to add anything to what he has said, especially as we have quite recently had occasion to consider and determine a question somewhat similar to the first in the case of Faber vs. Police, in which the opinion has just been filed. It was urged in the argument that “the present capacity of taking effect in possession, if the possession were 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.”— Fearne on Rem., *216. And, therefore, whenever there is in'esse a person who could immediately take, if the prior estate should then end, the remainder, eo instanti, becomes vested; and as in this case there were brothers and sisters of Agnes residing in the State continuously from the time of the death of the testator up to the time of the death of Agnes, if at any moment after testator’s death Agnes had died the remaindermen mentioned in the will were in esse and qualified to take, Agnes never having had a child, and, therefore, the remainder was at all times vested. This argument, though plausible, cannot stand the test of examination. It is very certain that the limitation to the brothers and sisters depended, by the express terms of the devise, upon the happening of two events, both of which were uncertain at the time the devise took effect, and continued to be uncertain until the death of Agnes: First, the contingency that Agnes should die “ not leaving any children or child alive at her death; and, second, the contingency that one or more of the brothers and sisters should be residents of this State at the time of the death of Agnes. Hence, it would be more correct to say that there was no moment during the existence of the precedent life estaté when these remaindermen could claim that they had a present fixed right to take possession when the possession should be-; come vacant by the termination of the precedent particular estate, because until that estate terminated their right remained uncertain and wholly dependent upon the happening of the two contingencies above mentioned. Suppose Agnes had died in giving birth to a child which survived her, their right to take would have been, not defeated, because that would imply perhaps that the right had once existed, but their chance of having such right, which before had rested in contingency, would then have been w'hollv lost. It seems to us, therefore, very clear that their interest was wholly contingent— not merely that their right to enjoy the estate in possession, but that their right -to future possession, was wholly contingent.

The argument of the appellants is based upon a misconception of the proposition laid down by Fearne, which we have quoted above, as is apparent from the illustration which he employs to elucidate such proposition. For, after laying down that proposition, he proceeds to .say: “For instance, if there be a lease for life to A, remainder to B for life, here the remainder to B, although it may possibly never take effect in possession because B may die before A, yet, from the very instant of its limitation, it is capable of taking effect in possession if the possession were to fall by the death of A; it is, therefore, vested in interest, though perhaps the interest so vested may determine by B’s death before the possession he waits for may become vacant.”

The italics are ours, and the difference between the case stated by Fearne as an illustration of the rule relied upon by the appellant and that now under consideration is that in the former the remainderman, from the very instant the limitation was made, had the right to the possession upon the falling in of the precedent estate, which right did not depend upon any contingency but only upon the death of A, — an event certain to happen, — while in the latter the right remained contingent, being dependent upon the happening of two uncertain events during the whole of the existence of the precedent estate, and it could not be known certainly that such right would ever be entitled to become vested until the determination of the particular estate. Again, Fearne, on page *217, says that “ whenever the remainder is limited to a person not in esse, or not ascertained, or whenever it is limited so as to require the concurrence of some dubious, uncertain event, independent of the determination of the preceding estate and duration of the estate limited in remainder, to give it a capacity of taking effect, then the remainder is contingent. Now, in this case, the remainder is limited to persons some of whom may not have been in esse — the children of deceased brothers and sisters — because after the death of the testator some one or more of the brothers or sisters might have died leaving children born subsequent to the death of the testator who were residing in this State at the time of the death of Agnes. If so, it is difficult to see how they could be excluded. How the fact may bé in reference to this matter does not appear, as the “case” only discloses the names of such children of deceased brothers and sisters as were living in this State at the time of the death of the testator who continued to live here until the death of Agnes; but whether there were any such children born subsequent to the death of the testator living in this State at the time of the death of Agnes we are not informed. Be that as it may, the limitation certainly was to a class of persons “ not ascertained,” for it was not merely to the brothers and sisters but to such of them as should be living in the State at the time of the death of Agnes. Who they would be could not, of course, be “ascertained” until her death. — See Luddington vs. Kine, 1 Ld. Raym., 203, and Gilman vs. Elvey, 4 East, where similar limitations were held to create contingent and not vested remainders.

As to the second question, we are content to rest that upon the reasoning employed and the authorities cited by the Circuit Judge. For even assuming that a married woman could not convey her life estate without makmg the acknowledgment in the manner prescribed by the Act of 1731, as amended by the Act of 1767, yet the deed of feoffment, in that case, would be regarded as the deed of the husband alone; and by the common law, which in this respect had not at the time this deed was made been altered or modified in this State, the conveyance of the husband alone operated as a discontinuance of the wife’s life estate, and thus destroyed the estate in remainder by the determination of the particular estate before the happening of the contingency upon which alone the remainder could vest. — 2 Kent Comm., 133, 5th ed.; 1 Wash, on Real Prop., 578.

The judgment of the Circuit Court is affirmed.

Willard, C. J., and Haskell, A. J., concurred.