31 Neb. 307 | Neb. | 1891
In August, 1881, one Dr. H. O. Hanna, a resident of Falls City, died, leaving surviving him as heirs his widow, Martha A. Hanna, one daughter, the appellant in this action, a son, Rudolph M. Hanna, and the children of a deceased son. At the time of his death the doctor was possessed of a considerable estate, consisting of both real
The question presented is, What interest, if any, did Budolph have to convey in the homestead of his father after the death of his mother? The solution of the question depends upon the construction of the homestead law of 1879. Section 17 of that act provides that “If the homestead was selected from the separate property of either husband or wife, it vests on the death of the person from whose property it was selected in the survivor for life, and afterwards in his or her heirs forever, subject to the power of the decedent to dispose of the same, except the life estate of the survivor by will.” The language is somewhat obscure, as it is not entirely clear to which party the words “his or her heirs” following the words “survivor for life” relate. The fact, however, that where the homestead was not a part of the estate of the survivor he or she should have only a life estate therein would seem to determine this question. In other words, the homestead belongs to the estate of the husband or wife who owned the same, but the survivor, although not the owner, has a life estate in such homestead which the owner cannot by will divest.
Blackstone says: “ Contingent or executory remainders, whereby no present interest passes, are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event, so that the particular estate may chance to be determined and the remainder never take effect. First, they may be limited to a dubious and uncertain person. As if A be tenant for life, with a remainder to B’s eldest son (then unborn) in tail; this is a contingent remainder, for it is uncertain whether B will have a son or no, but the instant that a son is born, the remainder is no longer contingent, but vested. Though, if A had died before the contingency happened, that is, before B’s son was born, the remainder would have absolutely gone, for the*particular estate was determined before the remainder could vest. * * * A remainder may also be contingent, where the person to whom it is limited is fixed and certain, but the event upon which it is to take effect is vague and uncertain. As, where land is given to A for life, and in case B survives him, then with the remainder to B in fee; here
A vested remainder is one by which a present interest passes to the party, though to be enjoyed in the future and! by which the estate is fixed, to remain to a determinate-person after the particular estate is spent. He has a fixed! right for future enjoyment. It is the present capacity of taking effect in possession if the possession were to become-vacant, not the certainty that it ever will become vacant while the remainder continues, which distinguishes a vested from a contingent remainder., In other words, in the former the enjoyment is uncertain, in the latter the right to that enjoyment. ( Williamson v. Field, 2 Sandf. Ch., 553.)
In Moore v. Lyons, 25 Wend., 119, the court of errors of New York held that in a devise of real estate to A for life, and after his death to three others, or to the survivors or survivor of them, their heirs and assigns forever, the remainder-man took a vested interest at the death of the testator. Survivorship is referred to the period of the death of the testator where.there is no intent manifest to-the contrary so as to cut off the heirs of the remainder-man who should happen to die before the tenant for life. It was also held that the remainders were vested and not contingent* The principal opinion was written by Chancellor Walworth and contains a pretty full review of the cases up to the year 1840, and in our view states the law correctly. In the case at bar the remainder became vested in the heirs on the death of their father* If any one of the heirs had died during the existence of the life estate, the heirs of such deceased heir would have inherited his
The judgment of the court below is right and is
Affirmed.