In re McHARRY. McHARRY v. KINGMAN & CO., 111 F. 498

GROSSCUP, Circuit Judge. Upon the petition of Kingman & Company, a corporation under the laws of Illinois and a creditor of Homer C. McHarry, Bankrupt, the District Court, affirming a like' finding of the referee in bankruptcy, ordered the bankrupt to schedule, as part of the assets of the bankrupt estate, his one-fifth interest in certain real estate devised under the Will of the bankrupt’s grandfather, Hugh McHarry, to Hugh A. McHarry, father of the bankrupt, during the term of his natural life, with remainder in fee, on the death of said Plugh A. McHarry, to his children, share and share alike.

The principal clause of the Will, omitting the description, is as follows ; “I give, devise and bequeath unto my son, Hugh A. McHarry, for and during the term of bis natural life, tne * * * (description), with the remainder in fee in all of the lots and lands in this clause mentioned, on the death of the said Hugh A. McHarry, to his children, share and share alike; the descendant of a deceased child to take the share his, her or their parent would be entitled to if living; hut should the said Hugh A.

McHarry die without leaving any child or children, or the descendant of any child or children surviving him, then in .that event, it is my wish and will, and I hereby give, devise and bequeath to my children, Homer C. McIIarry, William A. McHarry, Margaret E. Donaldson, Hugh A. McHarry and Josie R. Dexter, the said lands and lots in this clause mentioned in fee simple share and share alike. The heirs of each of my children to take the share which such child would be entitled to if living.” At the time of .Homer McHarry’s adjudication as a bankrupt Hugh McHarry, the testator, was dead, but Hugh A.

McHarry, father of the bankrupt, and owner of the life estate, was still living and in possession of the life estate.

Section 70 of the Bankrupt Act vests the Trustee in bankruptcy, by operation of law, with the title of the bankrupt, as of the date of adjudication, of all property which, prior to the filing of the petition, the bankrupt could by any means have transferred, or which might have been levied upon and sold under judicial process. The question, therefore, presented by this case is: Did the will of Hugh Mcl larry, above quoted from, vest Homer Mcllarry, the bankrupt, on the death of the testator, with an estate that could by any means have been transferred by him? We are of the opinion that it did.

The estate taken by Homer Mcllarry on the death of the testator was a vested remainder. It embraced a fixed interest in particular pieces of real estate, and it was in favor of a person certain and definite, to be enjoyed in future by him and his descendants. The only contingency presented was whether the devisee would be alive when the intervening life estate expired. Such a contingency does not go to the right of enjoyment, but only to the actuality of enjoyment. It is not an uncertainty as to the estate conveyed, but only as to whether the remainder-man will live to take possession of it.

Such uncertainty does not make the estate a contingent remainder. The rule is laid down by Kent as follows: “Tt is the uncertainty of tlie riglit of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent. The present, capacity of taking effect in possession—if the possession were to become vacant—distinguishes a vested from a contingent remainder, and not the certainty that the possession will ever become vacant while the remainder continues.” 4 Kent, Comm. 282.

The Supreme Court of Massachusetts thus states the rule: “Where a remainder is limited to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event that must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainder-man is in esse and ascertained.” Blanchard v. Blanchard, 1 Allen, 227. The adjudications in Illinois are to the same effect. In Scofield v. Olcott, 120 Ill. 371, 11 N.

E. 351, the rule is stated as follows: “Every remainder-man may die without issue before the death of the tenant for life. It is tlie 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, that distinguishes a vested front a contingent, remainder. When the event, on which the VrcmTing estate is limited, must happen, and when it also may happen be fore the expiration of the estate limited in remainder, that remainder is vested.” See also, Kellett v.

Shepard, 139 Ill. 433, 28 N. E. 751, 34 N. E. 254; Ducker v. Burnham, 146 Ill. 9, 34 N. E. 558, 37 Am. St. Rep. 135; Harvard College v. Balch, 171 Ill. 275, 49 N. E. 543; and McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015.

Were the question one of general law, we would have come to the conclusion announced ; but being one of local law, in which we are required to follow the rule laid clown by the court of last resort oi the state where the property is situated, we have found no difficulty in disposing of the question according to the adjudications of the Sv eme Court of Illinois. .e order below is affirmed.