| Wis. | Apr 30, 1897
The deed of Novemoer 19, 1874, purported to convey to Lapham and Houghton the legal title of the property in question in trust to hold such title and thereafter make conveyance thereof upon various contingencies as directed in the body of the instrument. The supposed trust was a passive or dry trust only,— a mere holding of the naked legal title. It was not an express trust, as defined and authorized by sec. 2081, S. & B. Ann. Stats., and hence it was one of the trusts abolished by the terms of sec. 2071 of the same statutes. So far, however, as the grants in the deed would have been valid if they had been made direct to the beneficiaries, so far the law executes the attempted trusts, and passes legal estates to the beneficiaries “ of the same quality and duration, and subject to the same
The trust deed reserved a life estate in Robert H. Oabell; then granted a life estate to Virginia,, his daughter, who was then, and is now, in being; and then attempted to grant a contingent remainder to the heirs of the.body of Virginia yet to be born or such of them as she should appoint by will. Here were evidently two life estates granted to persons in being at the creation of the estates, and a contingent remainder to persons not then in being. There were further provisions (in the event of failure of issue in Virginia;) attempting to grant a third life estate to the grantor’s wife, and an estate in fee thereafter in the then heirs of the grantor, but these provisions we find it unnecessary to consider. 'Whether these provisions were void or not, or whether the third life estate would drop out and the estate in fee move up and take its place, are questions which it may become necessary to decide at some time-; but they are not now presented, nor can it now be told who are the parties interested in their determination. It may be conceded that these latter alternatives are all void, and yet the limitation to the children of Virginia may be valid. Schettler v. Smith, 41 N.Y. 328" court="NY" date_filed="1869-12-21" href="https://app.midpage.ai/document/schettler-v--smith-3620895?utm_source=webapp" opinion_id="3620895">41 N. Y. 328. The contingent remainder in Virginia's children precedes all these estates, and, if it is valid, then the plaintiff cannot recover. We think it valid. At the time of the execution of the trust deed the absolute power of alienation could not be suspended for a longer period than
The sum and substance of the matter is this: The remainder limited to the children of Virginia, or such of them as she should appoint by will, is a valid contingent remainder at common law. It falls in the fourth class of contingent remainders, as defined by Mr. Rearne, namely, “ Where a remainder is limited to a person not ascertained, or not m being, at the time when such limitation is made.” Rearne, Remainders, 9. The statute which limits the time during which the power of alienation may be suspended does not affect the remainder here, because the time of suspension is limited by the grant itself to the duration of two lives in being. We are referred to no other statute which can be held to invalidate the remainder. It follows necessarily that the complaint should have been dismissed.
■ By the Court.— Judgment reversed, and action remanded with directions to dismiss the complaint.