James Kingsley, William and Osceola Kingsley, Plaintiffs in Error, vs. Adel E. Broward, Frank Broward et. als., Defendants in Error, 19 Fla. 722

The Chief-Justice delivered the opinion of the court: It is established by the evidence that Z. Kingsley was not married to Flora H. Kingsley, and that she was never married; that at the date of the deed to the trustees,

(1829) Charles, her only child then living, was about six months old; that Flora lived with Z. Kingsley and these plaintiffs were born during such cohabition, he being their putative father; that he was a white man and Elora a person of African or negro blood, the result of all which is that the plaintiffs are the illegitimate children of Elora. Charles died in 1852 and Flora in 1875 in San Domingo, where plaintiffs reside. The deed of June 1829 to the trustees gave to Elora an estate for life and remainder to Charles.

A remainder is defined by Lord Coke to be a remnant of an estate in lands or tenements, expectant on a particular estate, created together with the same at one time. This imports that the remainder must commence or pass out of the grantor at the time of the creation of the particular estate.

Thus, where an estate is conveyed to A for life, remainder to B in fee: B’s remainder in fee passes from the grantor at the same time as A’s life estate in possession. (Fearne on Remainders, 3 and note.) A vested remainder exists “ when there is a person in being who would have an immediate right to the possession of lands upon the ceasing of the intermediate or precedent estate.” (4 Kent’s Comm., 202.) By the terms of this deed the termination of the life estate of Flora would give the right of possession to Charles.

His estate was therefore from the moment of its creation a vested remainder. “ It is the present capacity to take effect in possession, if the precedent estate should determine, which distinguishes a vested from a contingent remainder. Where an estate is granted to one for life, and to such of his children as should be living after his death, a present right to the future possession vests in such as are living, subject to open and let in after born children, and to be divested as to those who shall die without issue.

A vested remainder is an estate recognized by law, and is grantable by any of the conveyances operating by force of the statute of uses.” Croxall vs. Shererd, 5 Wal., 268, 288 ; Jackson vs. Sublett, 10 B. Monroe, 467; 4 Kent, 202 ; Fearne, 216, 217. The remainder being then vested in Charles from the moment the estate was created by the deed of 1829, no act of the trustees could affect his right. He had a present estate with a fixed right of future possession which vested estate was, in law, alienable by him on arriving at maturity, though the life estate had not then terminated.

The deed which the trustees attempted to make, however, was not executed in due form of law, not being attested by witnesses, and no further consideration need be given to it. Of course it follows that the deed of Z. Kingsley of 21st July, 1881, conveyed no estate as none remained in him nor had been conveyed to him by the trustees.

But it is claimed by plaintiffs in error that the deed of 1829 created a contingent remainder in the plaintiffs, to-wit: that in the event that Charles should die without issue “ then to have and to hold the said property to any other quarteroon child or children that she may have,” &c.

A contingent remainder may fail of effect, and the law will never adjudge a grant good by reason of a possibility or expectation of a thing which is against law, and upon this principle it was decided at a very early day, and is a settled rule of the common law, that “ a limitation to a bastard not in esse is held to be void; for the law does not favor such generation, or expect that such should be.” Fearne, 248, 249. The late Earl of Devonshire devised three thousand pounds to all the natural children of his son by Mrs.

Heneage, and the question was whether the natural children born after the will should take a share, and it was decided by the Lord Chancellor that they could not. Metham vs. Duke of Devon., 1 Peere Wms., 529 ; and see Cartwright vs. Vawdry, 5 Ves., 530; Wilkinson vs. Wilkinson, 1 Younge & Coll., 657. Sir William Grant, M. R., in Earle vs.

Wilson, 17 Ves., 531, stated the rule as laid down by Lord Coke, and adopted by Lord Macclesfield, to be that “ a bastard cannot take as the issue of a particular person, until it has acquired the reputation of being the child of that person ; which cannot be before its birth.” Evans vs. Massy, 8 Price, 34 ; Snelham vs. Bailey, 1 Sim. & Stu., 78, note; Wilkinson vs. Adam, 1 Ves. & Beame, 422. A trust for illegitimate children to be thereafter begotten will not bo enforced, as being against good morals. 1 Perry on Trusts, §66, and authorities cited.

It must, therefore, be held, upon authority, that the limitation m this deed to the “ quarteroon children ” of Elora Kingsley not then in esse, and these plaintiffs being such children and illegitimate, was void. No right under the trust deed vested in them because they were not then begotten, and were not and could not he identified and named, and they were not legitimate. Elora had no legitimate children upon whom the estate could be transmitted.

The limitation in the deed was to Charles and to his heirs and assigns forever; and in case of his death without issue to any other quarteroon children that she may have, and to their heirs and assigns forever; but in case the said Elora should die without leaving issue of the aforesaid description then the trustees are to hold the property to and for the use of her heirs and assigns forever. Ye have found that the plaintiffs took nothing under this deed. On the death of Charles what became of the estate? Not to the plaintiffs, because the law declares they cannot take under the deed.

We have a statute providing that “bastards shall be capable of inheriting or transmitting inheritance, on the part of their mother, in like manner as if they had been lawfully begotten of such mother.” Act of November 17, 1829, McClellan’s Dig., 470, §8. The testimony is that Charles died in 1852, but we find no proof that he died without issue. If he had issue living at his death recognized by law, the estate in fee vested in him and his heirs and assigns.

If he had no such issue, and he had an estate of inheritance under the deed, the property escheated to the State, or was transmitted to his mother by force of the above mentioned statute. In the following cases it was held, under this precise statute, that the property would go to his lawful children, but would not go to his mother if he had no such children, nor to his illegitimate brothers: Bent’s Heirs vs. St. Vrain, 30 Mo., 268 ; Doe ex dem. Crawle vs. Bates, 6 Blackf., 533: Scroggin vs. Allan, 2 Dana, 363 ; Remington vs. Lewis, 8 B. Monroe, 606 ; Stevenson’s Heirs vs.

Sullivant, 5 Wheaton, 207; and this whether the property came to him through the mother or by purchase. In the case of Stover vs. Boswell’s Heirs, 3 Dana, 233, it was decided (conflicting with the above cases in 2 Dana and 8 B. Mon.) that under this statute the mother might “ inherit from and transmit an inheritance to her bastard chil- _ dren.” In Ohio, Little vs. Lake, 8 Ohio R., 290, the court says that if the illegitimate son had died before his mother she would have inherited the estate from him; but the law has not removed all the disabilities of bastards.

It has permitted an inheritance from or to the mother; but it has not permitted it from or to collaterals merely because they are connected with the mother. In Virginia, Garland vs. Harrison, 8 Leigh, 358, and Hepburn vs. Dundas, 13 Grat., 219, it is decided that under this statute bastards might transmit inheritance to bastard brothers and sisters, the mother being dead. The court in this case refuses to be governed by the ruling of the court in Stevenson’s Heirs vs. Sullivant upon the same statute upon the ground that the court in the latter case had construed the Ohio law and not the Virginia statute.

If we adopt the view of the last named cases, the result will be that Flora, on the death of her son Charles without issue, was his heir and invested with whatever interest he had in the property. But if he died without issue the words of the deed make his estate a remainder for his life only.

Looking again at the language of the deed we find that it provides that if Charles dies without issue and “ Elora should die without issue of the aforesaid description, (quarteroon children) then my trustees aforesaid are to hold this property to and for the use of her heirs and assigns forever.” The law construes such “ issue ” to be legitimate and not illegitimate children. The logical result of this is that Elora dying without issue capable of taking under this deed the property is held by the trustees “ for the use of her heirs and assigns forever in other words, the fee is ultimately vested in her grantee.

She conveyed, after Charles’ death, to Cutter, who conveyed to John Broward, the original defendant in this suit. The deed gave her a power of appointment which she has executed. In any aspect upon the facts disclosed, and the law applicable thereto, the plaintiffs have shown no title as against the defendants in this suit.

It must not be understood that in thus disposing of this case we decide the question whether, under the circumstances and the law, the title in fee vested in Charles, or that he had any estate transmissible by inheritance; nor whether, his mother surviving him, if he died without issue, she would inherit from him; nor whether if she had died without conveying the land the plaintiffs here would not have taken title as her heirs. We have cited conflicting authorities upon some points for the purpose of illustration, and to show. that whichever of them be adopted the plaintiffs are in no better position.

The judgment is affirmed.