delivered the opinion of the court:
Francis V. Balch, trustee under the will of John Hancock, filed the bill in this case for construction of a provision of said will under which he had held property in trust for Franklin Hancock, and for instruction as to his duties as trustee, and partition of real еstate so held in trust. The court decreed that appellant had no interest in the property, and this appeal was prosecuted.
John Hancock, of Boston, died April 1, 1859, leaving the will in question, dated April 1, 1857, and the controversy arises upon the following clause: “I give and bequeath one-fifth part of my estate to a trustee, upon trust, to invest the same and appropriate so much of the income thereof as he, in his discretion, shall think needful for the support of my son Franklin. It is my will that the trustee may pay over to my son his portion of my estate at such time and in such sums as he may deem expedient, desiring him to consult the interest and welfare of my son, and that my son, in case his portion of my estate is nоt paid to him as aforesaid, shall have power to dispose of the same, by will, in the family. I direct that at the decease of my son, if his portion of my estate should not have been paid over to him as aforesaid, or if he shall not have disposed of the same by will, the whole sum remaining in the hands of the trustee shall be divided among my other children, to-wit, George, Charles Lowell, Elizabeth Lowell and ^Washington, in the same way, subject to the same trusts and powers upon which they, rеspectively, receive their portions of my estate. It is my will that my son may appoint his own trustee.”
Charles Lowell Hancock, to whom a remainder was given by this provision of the will, died in 1890, in the lifetime of Franklin Hancock, before the exрiration of the life estate, and left a will, by which, after other bequests, he devised and bequeathed the residue of his estate, real and personal, to appellant, providing that the Hancock professorship should be first amрly provided for from time to time, and then the balance should be applied to the general purposes of the college. Franklin Hancock, the owner of the equitable life estate, afterward died, in 1893, intestate, without reсeiving any of the principal of his portion, and, having made no will, of course did not exercise his ¡Dower to dispose of the same by will. The main question in this case is whether the remainder limited to Charles Lowell Hancock passed by his will to appellant; and if it was a vested one, there is no claim that it would not so pass although he died before tie termination of the life estate.
The law always gives preference to vested remainders, and a remainder will bе held to be vested unless a condition precedent to its vesting is clearly expressed. In construing wills a remainder will be held to be vested unless a contrary intention on the part of the testator is clearly manifested. (4 Kent’s Com. 204; Scofiеld v. Olcott,
Here, so far as the will itself is concerned, the legal title is given to the trustee and the equitable life estate to Franklin Hancock, with remainder tо the four children, among whom was Charles Lowell Hancock. These persons to whom the remainder was given were determined and in being, and had a present capacity of taking the estate in remainder at the death of John Hаncock, if the life estate in Franklin had then terminated. There was no uncertainty as to who should take the remainder, and it was not limited to dubious or uncertain persons. So, also, the time when the remainder would come into possessiоn unless divested was one which must necessarily occur in the efflux of time. It is true that in the will there is a provision that the trustee or Franklin might exercise a power which would divest the remainder. The power conferred upon Franklin was to dispose of the share in the family; but it is well settled that such a power of appointment does not prevent the vesting of an estate in default of an exercise of the power, and in such a case the estate vests subject to bе divested by the execution of the power. There is no estate limited under the power until it is.exercised and the appointment made, and in default of the appointment the estate is vested although the power exists. There cannot be any doubt that the power in Franklin to dispose of the share by will in the family did not prevent the vesting of the remainder in Charles Lowell or render it contingent. 4 Kent’s Com. 324; 2 Sugden on Powers, chap. 2, sec. 4.
A further provision is, that the trustee might exercise a power which would divest the remainder, which was by paying over to Franklin his portion of the estate at such time and in such sums as the trustee might deem expedient. This was a power to enlarge or increase the estate in Franklin and merge the life estate in the fee. This power given to the trustee is not different in its nature or effect from the authority given Franklin to dispose of the share in the family. The one was a power to give it to Franklin, and the other a power in him to bestow it upon some other member of the family. We can not see that it is material in whom the power was vested or how it was to be exercised—whether by will or by turning over the estate to Franklin. If this power of the trustee had beеn executed it would have converted the life estate of Franklin into a fee in respect to any part or so much of the estate as the trustee might have turned over, and defeated the remainder in Charles Lowell to that еxtent. The mere conferring of the power, however, did not operate as a limitation, and none would arise until the power should be exercised. Where a limitation is only to be effected by the exercise of a power, there is no limitation until the power is exercised, and the mere fact of its existence does not suspend other provisions. It is a nullity until raised by the execution of the power. (Fearne on Contingent Remainders, 221.) To be contingent the remainder is to be dependent upon or await an occurrence precedent to its vesting. In Railsback v. Lovejoy,
It is also argued that where a gift is only by direction to divide or distribute an interest dоes not vest until the time of distribution arrives,1 and that for this reason the estate in Charles Lowell was not vested. There is, however, a well recognized exception to the rule where the division is postponed for the convenience of the fund or property, as, for the purpose of letting in a prior gift for life to another. In such a case the estate will be vested, and not contingent, and the vesting will not be deferred until the division. (Scofield v. Olcott, supra; Ducker v. Burnham, supra.) In this case the remainder was clearly postponed, by reason of the position and for the convenience of the fund, to let in the life estate to Franklin. The only reason why the four children named could not enter npon the enjoyment of the remainder was not because of anything personal to them, but because the property was given to Franklin during his life. The only object was to let in this life estate in Franklin, and whenever that object was fulfilled and there was no further use for the fund to fulfill that object it was to pass to the other children, and it came within the exception to the rule.
The other interests are to be disposed of as follows: Washington survived Franklin, and one-fourth of that portion goes to him. George Hancock died leaving a will bequeathing all his property to Charles Lowell Hancock during his life, and then to go as Charles Lowell should in writing direct, and Charles Lowell directed the same to be paid to his three niеces, Elizabeth L. H. Wood, Mary E. Tilton and Delia P. Clegg, and his nephew, John H. Moriarty, in equal portions, and that interest now belongs to them. Elizabeth Lowell Hancock was married to Joseph Moriarty. She survived her husband and died in 1857, intestate, leaving three-children, John H. Moriarty, Elizabeth L. H. Wood and Joseph M. Moriarty. The son Joseph M. Moriarty died leaving a will bequeathing his estate to Joseph O. Rutter as trustee, for the use of Charles Lowell Hancock during his life, and at his decease to such рerson or persons as he in writing might direct. It is claimed by appellant that the devise of the residue of his estate by Charles Lowell passed this interest, and that the general residuary clause is a good appointment under the will of Josеph M- Moriarty. There is nothing in the will which shows an intention to dispose of that property or to exercise the power conferred. The question whether the will of Charles Lowell would! operate as an appointment under the will/оf Joseph M. Moriarty depends upon'whether he intended to act under the power. The will of Charles Lowell was made before the will of Joseph M. Moriarty was probated, and there is f nothing to show that Charles Lowell knew of the power. There being no reference to the subject of the power or . to the power itself, and the intention to execute it not appearing in.any way, it did not operate as an exercise of the power. (Funk v. Eggleston,
The decree of the circuit court is reversed and the cause is remanded to that court, with directions to enter a decree in accordance with this opinion.
Reversed and remanded.