| Ky. Ct. App. | Mar 19, 1913
Opinion op the Court by
Affirming.
This appeal involves tbe construction of the fourth clause of the will of Washington Spradling, Sr., who died a resident of Jefferson County in the year 1868. The clause in question is as follows:
“4th. I give and devise to the wife of my natural, son, Washington Spradling, for her sole and separate use so that the said Washington shall have no authority and control over the same or the rents, issues and profits. arising therefrom — a lot of land twenty-six feet front on’ the south side of Walnut Street at the southwest corner, of Walnut and 11th Streets — and a lot one hundred and*31 thirty feet front on the west side of 11th Street between Walnut and Madison Streets, being the same purchased of Alfred Thurston, and part of this property has been sold by me, and this devise is to cover what is left at that place, be it more or less, and the northern house and lot of the two which I own on the east side of Third between Market and Jefferson Streets, said Louisa is given only a life estate in said lots; upon her death I do hereby give and devise the same to her descendants by my said son .Washington, such descendants taking interest therein as they would do taking from her by descent.”
The question arises in the following way: On Sep- ■ tember 15,1880, Louisa Spradling, the devisee mentioned ■ in the above clause of the testator’s will, together with ■her husband, Washington, the testator’s son, and her ■ three children, William Henry Spradling, James Guthrie Spradling, and Mary Lizzie Spradling, executed and delivered to Nicholas Reiss a deed to a portion of the property devised by Washington Spradling, Sr., by the clause of the will supra. On May 3, 1911, Nicholas Reiss died intestate and left surviving him plaintiffs J. W. Reiss, Theresa Zinn and others, who were his only children and heirs at law. In the month of June, 1911, the children of Nicholas Reiss entered into a contract with Otto Slote for the sale of the property which they inherited from their father. Otto Slote declined to carry out the contract of sale on the ground that the title of the vendors was defective. Thereupon J. W,. Reiss and the other children of Nicholas Reiss, deceased, brought this action against Otto Slote for specific performance. In their petition and amended petition they set forth their chain of title, including the will of Washington Spradling, Sr. The defendant’s demurrer to the petition as amended was overruled, and having declined to plead further, specific performance was decreed. Defendant appeals.
Defendant contends that as the word “descendants” is broad enough to include children, grandchildren, etc., it cannot be ascertained until the death of Louisa Spradling, who is still living, who her descendants will be. ' Therefore, the deed executed by her and her children was not sufficient to vest a fee simple title in Nicholas Reiss. ' It may be conceded that the words “children” and “de- • scendants” are not ordinarily synonymous. Neilson v. Brett, 99 Va., 673" court="Va." date_filed="1901-11-21" href="https://app.midpage.ai/document/neilson-v-brett-6810511?utm_source=webapp" opinion_id="6810511">99 Va., 673. While children are descendants, de- ' scendants are not always children (Bates v. Gillett, 132 Ill., 187, 24 N.E. 611" court="Ill." date_filed="1890-03-31" href="https://app.midpage.ai/document/bates-v-gillett-6964310?utm_source=webapp" opinion_id="6964310">24 N. E. 611), for descendants are those who
The following elementary rules for distinguishing a vested from a contingent remainder have been approved by this court, Mercantile Bank of New York v. Ballard’s Assignee, 83 Ky., 481" court="Ky. Ct. App." date_filed="1885-12-17" href="https://app.midpage.ai/document/mercantile-bank-of-new-york-v-ballards-assignee-7131677?utm_source=webapp" opinion_id="7131677">83 Ky., 481: “The mere fact that an estate is to take effect and be enjoyed after the termination of an intervening estate will not prevent both estates from being vested at the same moment.”
“It is not the uncertainty of enjoyment in the future, but the uncertainty of the right to that enjoyment which marks the distinction between a vested and contingent interest.” Kent’s Commentaries, vol. 4, p. 206.
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.” Chitty’s Blackstone, vol. 2, page 169, note 10; Walter v. Crutcher, 15 B. M., 10.
In the case under consideration the persons who were to take in remainder, the children of Louisa Spradling by Washington Spradling, were certain. There was no uncertainty as to their right of enjoyment, though the enjoyment was postponed until the death of their mother. They had the present capacity of taking effect in possession had the possession become vacant. It follows, therefore, that they took a vested remainder. So long as their father lived their interest was subject to be diminished by the birth of other children. Upon his death
Judgment affirmed.