Hunt v. Hall , 37 Me. 363 ( 1853 )

Appleton, J.

— This is an action of the case in the nature of waste, and is brought under the provisions of R. S., c. 129, § § 4 and 5.

Ephraim Hunt, under whom the plaintiffs derive title, by his last will gave a life estate in the premises in which waste is alleged to have been committed, to his wife, and after her decease, directed that equal division should be made among all his children, and the heirs of such as might then be deceased, of all his property, both real and personal. The tenant for life is still' living, and the defendant represents her estate.

The rights of the parties depend upon the nature of the estate, which was devised by the will of Ephraim Hunt, which was in the words following: — “After the decease of my dear wife, my will is that my executor hereafter named cause an equal division to be made among all my children and the heirs of such as may then be deceased.” The persons who are to take are not those who are living at the death of the testator. The division is not then to take place. This is to be done at a subsequent and uncertain period. If the estate were to be construed- as vesting at the death of the testator, an heir might convey by deed his share of the estate, and if he should decease before the termination of the life estate, leaving heirs, his conveyance would defeat the estate of such heirs. This would .be against the express provisions of the will, which provide that the estate should be divided “ among his children and the heirs of such as may then be deceased.” By the terms of the will, the estate is not to vest till after the death of the widow, and then the division is to ensue. Till then there is a contingency as to the persons who may take the estate.

“ Contingent or executory remainders, (whereby no present interest passes,) are when the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious or uncertain event; so that the particular estate may chance to be determined and the remainder never take effect.” 2 Bl. Com. 169. In Olney v. Hull, 21 Pick. 311, the words of the devise were almost identical with those in the case now under consideration, and the Court held that until the death of the widow, it was uncertain, who would then be alive to take, and that therefore no estate vested in any one before that event happened. Where an estate is limited to two persons during their joint lives, remainder to the survivor of them in fee, such remainder is contingent, because it is uncertain which of them will survive. 2 Cruise’s Dig. Title 16, Remainder, c. 1, § 21. So where one devised lands to his daughter H. and her husband, for their respective lives, and after their death to the heirs of H., it was held that the remainder was contingent until the death, of H., and then vested in the persons who were then heirs. Richardson v. Wheatland, 7 Met. 169; Sisson v. Seabury, 1 Sum. 235.

It is obvious that by the terms of the will, the plaintiffs took a contingent and not a vested remainder. They are not within the provisions of R. S., c. 129, and consequently are not entitled to maintain this action.

Exceptions overruled. — Nonsuit confirmed.

Shepley, C. J., and Tenney, J., concurred.