Brown v. Williams Others , 5 R.I. 309 ( 1858 )

The question raised by this demurrer, is, whether the late John D. Brown took such an interest in the real or personal estate intrusted to the principal defendants by the will of his grandfather, as to entitle his wife, the complainant, as his general devisee and legatee, to partition of the one or an account of the other, as against them and the other defendants, their cestuis que trust. It is well settled, that contingent and executory estates and possibilities, accompanied by an interest, as they will descend to the heir, or pass to the administrator of the person entitled, according to the nature of the subject of them, so they may be disposed of by his last will and testament. In Roe v. Griffiths, 1 Blackst. R. 605, Lord Mansfield said, that in Selwyn v. Selwyn, "he was prepared to have shown, with the concurrence of all his brethren, that in all contingent, springing, and executory uses, where the person whois to take is certain, so that the same are descendible, they are devisable; these being convertible terms;" and such is the established doctrine. Fearne on Conting. Rem. 366-370, and cases cited. It will be noticed that the qualification is, "where the person who is to take is certain;" for if the contingency is to decide who is to be the object of the contingent limitation, as the person, or of the persons, to or amongst whom the contingent or future interest is directed, as it cannot be determined in whom the interest is, until the contingency happens, no one can claim, before the contingency decides the matter, that any interest is vested in him to descend from, and hence to be transferred or devised by him. The example given by Mr. Fearne is the case of a contingent or executory limitation to the right heirs of J.S. who is then living: in which case, as only the death of J.S. can decide who his right heirs are, according to the axiom nemo est hoeresviventis, it is evident, that it cannot be ascertained in whom the interest is during the life of J.S.; nor, consequently, that it is in anybody, during that period. If, therefore, the heir presumptive of J.S. should die before him, the contingent right would not descend from, nor could it be transferred or devised by him, for the simple reason, that no interest ever vested in him to descend, or to be transferred or devised. Fearne on Conting. Rem. 370, 371; and see Doe d. Calkin v. Tomlinson, 2 M. S. 165; Richardson others v. Wheatland, 7 Met. 171. Although, therefore, it is a general rule, that contingent interests, as well as vested interests, pass to the real and personal representatives of the person entitled, according to the nature of such interests, so as to entitle such representatives to them when the contingencies happen, it is an equally well ascertained exception to the rule, that the contingent devisee has no such title to pass to his representatives, and none therefore to devise or bequeathe, where the contingency is such, that his own existence at some particular future time is to determine whether any interest is to take effect in him, that is, whether he is to be a devisee of the contingent interest or not. Fearne on Conting. Rem. 364, n. e, 365, 370, 371; 1 Jarm. on Wills, (2d Am. ed.) 653.

Now, upon reading the will of John B. Dockray, we are satisfied that he did not intend that any interest in the real estate, placed in trust for his daughter Mary for life, should vest in the descendants of his daughter, Ann Brown, until the death of Mary. The objects of his bounty in this devise were not, specially, the living children of his daughter Ann, but her descendants; for he expressly includes unborn children as well as born, and the issue of such as shall be dead at the death of Mary, as the persons to take in fee-simple this contingent remainder. It is true that the issue of a dead child are to take only the share that their parent, "if living, would have taken;" but this may be said to point rather to the mode of division in case of a child's dying intestate, than to speak as to the vesting of any interest in a child, pending the life estate of Mary; and then, the issue of a dead child, are, by the closing words of the clause, — "the which I do hereby give to them, their heirs and assigns forever," — expressly made, as purchasers, and equally with the children, the devisees of this remainder, in fee If therefore, we construe the words "as shall be living at the time of my said daughter, Mary Dockray's decease," as grammatically applicable only to the issue of deceased children how, we may ask, are their interests under this will to be preserved, since, then, we must hold, that an interest in these shares so vested in the children, that they might, pending the life estate of Mary Dockray, alienate them from their issue? The issue of children, living at the determination of the life estate, were certainly to take the share which their parents, if living, would have taken, as purchasers; and such an interest in them seems to us utterly incompatible with a right on the part of the parent to alienate his share, which would follow the vesting of any interest in the children pending the life estate of Mary. The issue were to take the shares which their parents "if living,would have taken;" which strongly implies, that their parents were to take nothing, unless living at the death of Mary Dockray. Considering that the intent of the testator evidently was, that the remainder in fee in these lands should go first to the issue of his daughter Mary, and in case his daughter Mary died, leaving no issue, then to the issue of his daughter Ann, whether children born or unborn at the time of making his will, or to the issue of dead children living at the death of Mary, we are satisfied, that the testator, by the words, "as shall be living at the time of my said daughter Mary Dockray's death," meant to designate as well what children, as what issue of the deceased children of his daughter Ann, should take. The only objection to this construction is, that as the future born children of Ann were to take, as well as her children born at the time of making the will, her children born after the death of Mary would be excluded by it; but then it is certain, that by the will, the division of these lands was to take place at the death of Mary; and the shares, both of the children and of the issue of the dead children of Ann, were to be then fixed and ascertained; and this, equally excluding children born after that time, indicates that such exclusion is no objection according to the will of the testator. It is true that the law favors the vesting of estates immediately upon the death of the testator; but as said by Mr. Chief Justice Shaw, in Richardson others v.Wheatland, 7 Met. 171: "This preference, however, is not to be so pressed as to defeat the intent of the testator." Our conclusion is, that only the children of Ann Brown, living at the death of Mary Dockray, were, in the contingency of her dying without issue, to participate in this remainder; and that the complainant's husband, who died before his aunt Mary, took nothing in it, and hence had nothing in it to devise to his wife, the complainant.

With regard to the five shares in the capital stock of the Rhode Island Union Bank, given by the will, upon the death of Mary without issue, to the complainant's husband and to his brother Edward, by name, there was no such uncertainty as to who was to take the contingent interest in them upon the death of Mary; and it vested in them immediately upon the death of the testator. Being so vested, the portion of the complainant's husband passed under his will to her, as his general legatee; and, as the contingency has turned in her favor by the death of Mary Dockray without issue, she is entitled to an account of this portion at the hands of the trustees, the defendants. By reason of the words, "to be equally divided between them," her husband and his brother Edward were to take this stock, when it vested in possession, as tenants in common, and not as joint tenants; and hence the portion of this stock to be accounted for to the complainant is a moiety, with the dividends accrued thereon since the death of Mary Dockray.

As the complainant, according to the pleadings is entitled to this account, the demurrer must be overruled, and the defendants ordered to answer to the bill of the complainant.