delivered the opinion of the Court:
This was a bill in equity, brought by George B. Temple and others, the surviving children of Lucy W. Temple, deceased, against Rebecca Thomas and others, to require Rebecca Thomas, heir-at-law of Henry L. Temple, to convey to complainants the legal title to certain lands in Marshall county, which are described in the bill. The complainants also pray that their title to the lands may be quieted and decreed paramount, and for general relief. The defendants, except Rebecca Thomas, put in answers to the bill, and upon a hearing, оn the pleadings and evidence, the court entered a decree dismissing the bill for want of equity.
There is no substantial dispute between, the parties in regard to the facts. On the 21st day of October, 1839, Peter Temple was the owner in fee of the premises in controversy. On the datе last named he and Lucy W. Temple, his wife, executed a deed conveying the premises to a brother, James H. Temple. On the 30th day of March, 1841, James H. Temple and wife executed a deed in trust to Henry L. Temple, the habendum of said deed being as follows: “To have and to hold the above granted and bargained premises to him, the said Henry L. Temple, upon trust and confidence, to receive and pay the rents and profits to Lucy W. Temple, wife of Peter Temple, of the county of Marshall and State aforesaid, to her sole and separate use, as her separate estate, independent of the control of Jier husband, during her natural life, and after the death of the said Lucy W. Temple then to transfer and convey the said premises to the children of the said Lucy W. Temple, if any shall survive.” Lucy Templе, at the time of the execution of this deed, had two children living, one of whom died before the mother, and the other surviving is one of the. complainants. Lucy W. Temple died in the month of May, 1890, leaving complainants, her children, surviving her. Henry L. Temple, the trustee, died in 1866, intéstate, leaving him surviving Eebecca Thomas, his only heir-at-law. .
In 1844 a bill was filed in the circuit court of Marshall county, by Edward S. Warren and William Spangler, against Peter Temple, Lucy W. Temple, James H. Temple and Henry L. Temple, charging that the deeds above mentioned, from Peter Temple to James H. Temple, and from James H. Temple to Henry L. Temple, in trust, were made to hinder and delay creditors, and were without consideration,, and fraudulent and void. On this question the master finds, that at the October term, 1844, of the circuit court of Marshall county, in the suit above mentioned, it was ordered, adjudged and decreed by the court, that the deeds, viz., the deed from Peter Temple and Lucy Temple to James H. Temple, dated October 21, 1839, and the deed from James H. Temple and wife to Henry L. Temple, dated March 30, 1841, be canceled, rescinded and forever deсlared to be nuil and void, and held for naught. Of the complainants two were born at the time of entering this decree, viz., Robert C. Temple and Lucy W. Temple, but were not made parties to this suit.
The defendants (appellees) set up in their answers their chain of title; alleged that the deed of trust vested no interest, at the time of its delivery, in the children of Lucy W. Temple, and that the deeds had been set aside by this decree in 1844; that therefore the complainants, having”no interest in the premises, yet vested at the time of the entering of the decree, werе not necessary parties; that they Were bound by the decree against the trustees, and therefore had no interest now in the premises. They also set up as a defense that they had been in possession of the premises for more than seven years under color оf title and paid the taxes, and therefore the estate of the trustee was barred, and also their interest in remainder, and also set up twenty years adverse possession as a bar.
It is insisted by counsel for appellants, that under the deed of trust from James H. Temple and wifе to Henry L. Temple the children of Lucy W. Temple took a vested interest in the lands in controversy, and as they were not made parties to the bill in equity in the circuit court in Marshall county in 1844, wherein the deed from Peter Temple to James H. Temple and the deed of trust from Jamеs H. Temple to Henry L. Temple were set aside as fraudulent and void, the decree was not binding on them, and did not affect their rights .in the property. We think it manifest 'from the language of the deed of trust, that Henry L. Temple, the trustee, took the legal estate in and to the premises сonveyed. By the terms of the deed the lands therein described are conveyed to Henry L. Temple, and he is to hold the lands, receive the rents, and pay the same to Lucy W. Temple during her natural life, and after her death then convey the lands to her children, if any shall survive hеr. This provision requiring the trustee to-convey shows the intention to vest the title in the trustee, otherwise he would not be required to convey. Indeed, the bill is framed on the theory that the legal estate was vested in the-trustee, and upon his death it passed, by descent, to Rebeccа. Thomas, his heir.
At the time the deed of trust was executed and delivered to the trustee, Lucy W. Temple had two children. Subsequently, and before the death of the mother, one of them died. All of the other complainants, children of Lucy W. Temple, were born after the delivery of thе trust deed, and after the decree rendered in Marshall county setting aside the trust-, deed. Did the children of Lucy W. Temple, under the terms of the deed of trust, take a vested interest in the property described in that instrument ?
While in the text books and the decisions of different States may be found numerous definitions and illustrations of vested and contingent remainders, which, in the main, are harmonious, yet it is often difficult to determine whether the facts in a given case will fall within the rules of law which control the one or the other. In this case, however, we are inclined', to the oрinion that a brief reference to the law on .the subject, in connection with the facts, will relieve the case of all doubt.
Blaekstone (vol. 2, p. 169,) says: '“Contingent or executory remainders are where the estate in remainder is limited, to take effect either to a dubiоus or uncertain person, or upon a dubious and uncertain event.”
•Kent (vol. 4, p. 205,) says: “A contingent remainder is limited so as to depend on an event or condition which is du-. bious and uncertain, and may never happen or be performed, or not until after the determination of the particular estate. It is not the uncertainty of enjoyment in future, hut the uncertainty of the right to that enjoyment, which makes the difference between a vested and contingent interest.”
“Upon a devise to A for life, remainder to the surviving children of J. S., it is obvious that, in terms, it is equivocal whethеr the surviving relates to the death of the testator or of A. If to the latter, the remainder must be a contingent one, since no one can tell who will be such survivors until the death of A.” 2 Washburn, *229.
Preston says: “An interest may also be contingent, first,, because it is limited to a person not in esse, as, a child before-it is born, and in that case the interest can not vest till the person to whom it is limited shall be born-; or second, because the person, though born, is not ascertained, as, the survivor of several persons, or the heirs of a person who is living, or a class of persons who shall attain twenty-one, or the like.”’ 1 Preston on Estates, 77.
In Matter of Ryder,
In Cheney v. Teese,
McCartney v. Osburn,
Kingman v. Harmon,
In Leving v. Eliot,
Other cases of a similar import might be cited, but a reference to other authorities is not required. We think it is plain that the interest which the children.of Lucy W. Temple took under the deed was a contingent one. The death of Lucy W. Temple’ would terminate the particular estate carved out, hut her death was not the event which was to give effect - to the estate in remainder. But the right of the children depended on the event th^t they survived the mother. Survivorship, and that alone, would give effect to the remainder. If no child survived, no right to the property accrued to a child,— in other words, the children of Lucy W. Temple were entitled to take, under the deed of trust on condition that they survived her. It is true that Lucy W. Temple had two children when the deed was executed, but whether they would in the end take an interest in the property could not be known until her. death, as it could not be known whether they would survive her or not, until she died. Whether the children would ever take depended on an event or condition which was uncertain and might never happen, and this is what is termed in Kent’s Commentaries a contingent remainder. If, therefore, the legal estate was in the trustee, and the children of Lucy W. Temple possessed only a future contingent interest when the. decree of the circuit court of Marshall county was rendered, in 1844, théy were not necessary parties to that proceeding, and as the decree set aside thе deed which purported to convey the lands to the trustee, and declared it null and void, no title remains in the trustee or his heirs which the complainants can assert in this or any other proceeding.
That the children of Lucy W. Temple were not necessary parties to the proceeding to set aside. the trust deed, is fully established by the rule laid down in American Bible Society v. Price,
What was said in that case applies here. The trustee, who held the legal title to the property, was made a party to the proceeding to set aside the deed in the circuit court of Marshall сounty, in 1844. He represented in that litigation whoever ultimately would be entitled to the property embraced in the deed of trust upon the death of Lucy W. Temple, and those claiming now are bound by such representation, and the decree is as binding and conclusive upon them as it would have been had they been made parties to the litigation. See, also, Bennett v. Garlock,
The Statute of Limitations was also set up and relied upon as a defense to the action, but as the case has been disposed of on other grounds it will not be necessary to consider that branch of the case.
The decree of the circuit court will be affirmed.
Decree affirmed.