Christian W. Holm & wife vs. George Low, 4 Met. 190

The opinion of the court was given, March 13th 1843 Wilde, J. This case depends on the construction of the last will of William C. Hookway, which is not very clearly expressed. The intention of the testator, however, we think may be ascertained with reasonable certainty.

In the first place, he gives and bequeaths to his wife, Lydia, the income, rents and profits of all his estate, real and personal, during the minority of his children, provided she should continue his widow ; and in case of her marriage again, his executors are directed to pay her annually, from the income of his estate, the sum of $ 100 during her natural life.

And the executors are further directed to pay to each of his children, as they arrive to the age of twenty-one years, the like sum of $ 100, if the income of his estate should admit thereof without injuring his wife or such children as might be minors ; which he left to be judged of and determined at the discretion of his executors.

And he further directs, that while his wife should enjoy the whole income of his estate, she should support and educate his children out of that income ; and if by intermarriage she should vacate her claim to the whc-fe of said income, that then the residue of said income should be appropriated, during the minority of his children, to their support and education, as his executors should direct.

Then follows the clause under which each party claims title to the demanded premises : “ And I do further will and order, that upon the death of my wife, and all my children or the survivors of them attaining the age of twenty-one years, or the heirs of such of them as may decease, leaving issue, all my said estate be divided between my said children and their heirs, agreeably to the laws of this Commonwealth respecting the division of the (¡states of persons dying intestate.” By this clause, the demandants’ counsel contend that the estate was devised to such of the testator’s children as should be living at the death of his wife, upon their attaining the age of twenty-one years, and to the issue of such of them as should have deceased, leaving issue ; and that this was a contingent estate, which could not vest until the death of the testator’s widow.

On the other hand, the tenant’s counsel insist that a life es* tate was given to the testator’s widow, and a vested remainder to his children : That this remainder vested in interest on the death of the testator, although it did not vest in possession until the death of the widow. If the will can be so construed, then undoubtedly the conveyance of William C. Hookway, son of the testator, and father of Sarah, the demandant, of his share of the remainder to Taylor, from whom the tenant derives his title, was a valid conveyance, according to the doctrine laid down in Whitney v.

Whitney, 14 Mass. 88, and the authorities there citeu But we are of opinion that the will cannot be so construed. It is argued, that the estate was given to the wife during her widowhood; which, being tempus indeterminatum, is an estate for life. This however is not the language nor the meaning of the will. The income of the estate is given to the wife, in express terms, during the minority of the children ; and the executors are to pay to each of them, as they arrive at the age of twenty-one years, the sum of $ 100, out of the income.

So that we think it manifest, whatever doubts there may be as to other parts of the will, that the estate devised to the wife was an estate for years, which never took effect; she having refused to take it, and having claimed her dower in the real estate.

And if she had not so refused, she would not have been entitled to the income after the children should arrive at the age of twenty-one. years ; for then the executors were to have the control of the meóme to pay the annuities given to the children, if the income would admit thereof without injuring the widow and such children as might be minors ; of which the executors were to judge according to their discretion. The executors then took the estate by implication, and of necessity, in order to enable them to execute the will.

We are also of opinion, that whether the.widow took an estate for years, or an estate for life, the remainder to the children did not vest in them on the death of the testator.

The rule laid down by Fearne, on this abstruse branch of the law, is applicable to the present case, and is supported by other authorities. “ Wherever,” he says, “the preceding estate is limited so as to determine on an event which certainly must happen ; and the remainder is so limited to a person in esse, and ascertained, that the preceding estate may, by any means, determine before the expiration of the estate limited in remainder ; such remainder is vested.

On the contrary, wherever the preceding estate is limited to a person not in esse, or not ascertained ; then the remainder is contingent.” Fearne, (7th ed.) 317. Thus if an estate be limited to two for life, remainder to the survivor of them in fee, the remainder is contingent, for it is uncertain who will be the survivor. Fearne, 9. Biggot v. Smyth, Cro. Car. 102. The case of Olney v. Hull, 21 Pick. 311, was decided on this principle.

In that case, the devise was to the testator’s wife as long as she remained his widow ; and should his wife die or marry, then the land to be divided equally among his surviving sons. And it was held that the remainder, given to the sons, was contingent until the marriage or death of his widow. The same principle applies, we think, in the present case.

The remainder is not given to the children generally, but to the survivors of them, living at the death of the testator’s wife, on their arrival at the age of twenty-one years, and the issue of such as had before died ; and if all his children should die without issue, then the estate was to be divided between the testator’s two nephews named in the will.

The persons, therefore, who were to take the remainder, were not ascertained, and could not be, until the death of the widow; and the remainder, according to the well established principle of law laid down by Fearne, was contingent, and could not vest in interest or possession, before that event. It was suggested by the tenant’s counsel, that the testator’s children might take a reversion, as heirs at law. But this cannot he admitted, as there was a devise over to thé testator’s nephews.

Nor could the widow and children repudiate and renounce the will, to the prejudice of the grandchildren, or nephews, unless the devise to them was a contingent remainder, and that was defeated and destroyed by the failure or destruction of the particular estate. We are then to consider whether the devise to the children surviving the widow was a contingent remainder ; and if so, whether it was destroyed by the failure of the particular estate vn which it depended. It was contended that an estate of freehold vested in the executors, by implication.

But the implied devise to them could not take effect as a contingent remainder, because there was no estate of freehold to support it. And it could not take effect as a vested remainder, because the estate limited to the widow might cease by her death, or by her refusing to relinquish her right of dower, before the children came of age, when the implied devise to the executors was to have commenced. This implied devise, therefore, by the rules of law, could take effect only as an executory devise. Fearne, 3.

But it has been argued that the implied devise to the executors vested in them when the children came of age; and that /hus vesting, it would change the subsequent limitation, upon the death of the widow, from an executory devise to a contingent remainder ; and that this contingent remainder would be defeated by the destruction of the vested freehold estate on which it depended.

We are, however, of opinion, that if such a freehold estate would have vested in the executors, it was not defeated by the executor’s refusal to accept the trust; for the same estate would have vested in the administrator with the will annexed : So that nothing appears in the case to show that if any such estate ever vested, it has been defeated by any act of the executors, or of the administrator with the will annexed. But we think that no estate ever vested in the executors ; for they renounced their trust, as is admitted, before either of the children came of full age ; and the widow never married.

And as to the land assigned to the widow as her dower, which includes the demanded premises, no estate ever did or could vest in the administrator with the will annexed, for he was never entitled to the income ; nor would the executors have been so entitled, if they had accepted the trust. So that the ground of an implied devise, as to this part of the estate, was removed before it could by possibility vest in possession.

The implied devise to the executors, and the subsequent limitations, were executory devises in their creation, and no event has since taken place by which any or either of them became contingent remainders. But if it were otherwise, it would not avail the tenant, as nothing appears to show that the implied devise to the executors has ever been defeated. The result is, that no estate ever vested in Hookway, the son, either in possession or in interest; but the whole estate first vested, on the death of the widow, in the testator’s grandchildren, of whom the demandant, Sarah Holm, is one.

Judgment for the demandants.