Vashon's v. Vashon , 98 Va. 170 ( 1900 )

Keith, P.,

delivered the opinion of the court.

The question for decision is upon the construction of a deed made October 31, 1850, by which John T. Sublett conveyed to Edward "W. Morris certain real estate in the city of Richmond upon certain trusts.

The decree appealed from held, first, that the name of Ann E. Yashon, which appears in the sentence “or if upon the death of the said George S. Vashon, the said Ann E. Yashon shall not be living,” should have been Martha Y. Yashon, and of this ruling, which was clearly right, no one is complaining.

It was further decreed that the only persons entitled to share in the property now held under the deed, or the proceeds of the sale thereof, are the children of George S. Yashon, Sr., living at the time of his death, and the issue of those who were then dead, and that these are to share per stirpes. In other words, the court was of opinion that the children of George S. Yashon took contingent remainders which were defeated upon their death without issue during his life; while, on the other hand, the contention of the appellant is, that the children of George S. Yashon, living at the date of the deed, took a vested remainder, subject to open and let in after-born children as they severally came into being, and, upon the death of any such child without issue, this vested remainder,, being an estate of inheritance, descended to George S. Yashon, the father, and passed under his will.

Ye are of opinion that there is no error in the decree. It is true that, courts lean to the vesting of estates, but this rule of interpretation means no more than that courts will hold that the -estate vests where the language of the instrument to be construed is such as to leave it doubtful whether the purpose was to create a vested or a contingent interest. We do not understand that language will be strained in order to accomplish that result. Miller v. Keegan, 14 Ind. 502; Guyther v. Taylor, 3 Iredell Eq. 323; Jarman on Wills, 5 Amer. Ed., p. 406.

Passing by that part of the deed which deals with the life estate, and coming to that which disposes of the remainder, the trust declared is as follows:

" But if upon the death of the said Martha Y. Yashon the said George S. Yashon shall not be living', or if upon the death of the said George S. Yashon the said Martha V. Yashon shall not be living, then upon the further trust to sell the said property in such manner as may seem best to the said party of the second part, his heirs, assigns or successors in the office of trustee, and to divide the proceeds of such sale among the issue of the body of the said George S. Yashon, the same taking per stirpes and not per capita, if such issue of his body there should be, and if there be no such issue then living, to pay over the same to the heirs-at-law of the said George S. Yashon.”

This clause directs the trustee to sell, upon the death of Martha Y. and George S. Yashon, or the survivor of them. It describes those who shall be entitled to participate in the proceeds, who are declared to be such of the issue of the body of George S. Yashon as should be living at that date, to take per ■stirpes and not per capita, that is to say, the descendant, if any, of a deceased child to stand in the shoes of its parent, and if there be no such issue then living, that is, upon the death of both the life tenants, George S. and Martha V. Yashon, then the heirs at law of George S. Yashon. George S. Yashon had a numerous family of children, some of whom 'died during his lifetime, unmarried and without issue. As their interest under the deed was dependent upon their being alive at the. death of their father, who survived Martha Y. Yashon, a contingency which never happened, they had no estate which their father could inherit. Nash v. Nash, 12 Allen, 345; McGraw v. Davenport, 6 Port. (Ala.), 319; Augustus v. Seabolt, 3 Metc. (Ken.), 155; Price v. Hall, L. R. 5 Eq. 399; Graves on Real Property, Pt. 1, p. 190 and note.

The case of Cooper v. Hepburn et als, reported in 15 Gratt., at page 559, which seems to be relied upon by appellant, is wholly different from this. There the devise was to M during his natural life, and to his children if he should have lawful issue, and it was held that upon the birth of the first child of M the remainder vested in it subject to open and let in after-born children as they severally came into being.

PTor does this case belong to that class in which the instrument creates a present interest, but postpones the period of enjoyment.

The decree is affirmed.

Affirmed.