Womrath v. McCormick

The opinion of the court was delivered, by

Thompson, J.

It is almost impossible to distinguish this case from Manderson v. Lukens, 11 Harris 31. The provision in the will there was, that upon the death or intermarriage' of the decedent’s AvidoAV, his estate was to be equally divided between all his children “ Avhicli may then be alive, or who may have left legitimate heirs, share and share alike, &c.” The word “legitimate heirs” Avas construed “ issue,” the Avord used in this case; thus making the resemblance very complete. It was held to be a vested remainder in the children of the testator, notwithstanding the division of the estate was not to take place until after the decease of the widoAV ; and there as here, the distribution or partition was to be to the heirs then alive, and to the issue of those who may have died. It was there held, on the authority of Kerlin v. Bull, 1 Dallas 175, and Frame v. Stewart, 5 Watts 433, to which might have been added many elementary citations, that the word “when” or “Avhenever,” referring to the time at which property is to be divided, will not be alloAved to make a devise to children contingent, for these Avords and their synonyms almost ahvays appear when a vested remainder is created. “ When” and “ upon,” referring to the time of performing an act, are substantially synonymous: Adams v. Williams, 2 W. & S. 227. Passmore’s Appeal, 11 Harris 381, seems also in point in this case. Mr. Eearne, p. 167, says, “ It sometimes happens that a remainder is limited in words which seem to import a contingency, though in fact they mean no more than would have been implied without them, or do not amount to a condition precedent, but only denote the time when the remainder is to vest in possession.” This is exactly descriptive of the case in hand. The devise of the estate being to the widow for life, its division and enjoyment could not take place until after her estate was determined by death, and the reference to that as the period of division and enjoyment by the word “ upon,” created no contingency of estate. A contingent remainder, is a remainder limited so as to depend on an event which may never happen or be performed, or which may not happen or be performed till after the preceding estate: Eearne, p. 3. The same author, at p. 217, observes: “ In short, upon a careful attention to the subject, we shall find that wherever the preceding estate is limited so as to determine on an event which certainly must happen, and the remainder is limited to a person in esse, that the preceding estate may by any means determine before the expiration of the estate limited in remainder, such remainder is vested.” On the contrary, if the limitation is upon a condition which may never happen, or to a person not in esse, or so as to require the concurrence of some dubious uncertain event, independently of the determination of the preceding estate and the duration of the estate limited in remainder, to give it capacity of taking effect, there the remainder is contingent: Id. 217. Here the life or particular estate in the widow must certainly determine at no very remote period, and by no possibility could the remainders determine during the continuance of that estate, for they were to the several children, their heirs and assigns or issue, interchangeably, and each constituted a single unconditional estate in remainder. The devisees were all in esse and ascertained, and were the children of the devisor. It seems to us that there was nothing contingent in the interest devised, but only as to the time of enjoyment, and that would have no effect upon the character of the estate.

The first object of the testator’s bounty was his widow, and the second his children ; and, in the event of death before partition, their issue. This designation of succession was nothing. It was what the law provides, and hence created no contingency of estate in his children. It is difficult to believe that the testator meant to do anything less than to divide his estate equally among his children at the times specified; and he directed, what the law would require, that the issue of any one of them having died, should represent his parent in the distribution, and of course in the succession. Were we to hold the estates devised to the children to be contingent remainders, there being no trust of the estate created, the title would, on the death of the testator, descend to the children as the exact representatives of the ancestor, subject to the life estate, and thus, as was said in Manderson v. Lukens, supra, the children might have both a vested and contingent remainder, at least for a time.

The ground upon which these remainders are claimed to be contingent is the possibility of the decease of a child or children of the testator leaving issue, when partition was to be made, but who might be cut out by alienation before that time. The terms “heir,” “issue,” and the like, define the quantity of estate, and the heirs succeed to it on the death of the ancestor by law. In all such cases succession may be defeated by alienation of the ancestor. The reference to issue here, regarded the succession of the law, and created no contingency to prevent the estate devised to the children from being vested remainders. The law requires the construction to be made in doubtful cases in favour of vested in preference to contingent remainders, and indefeasible to defeasible estates. We hold that the remainders to the children in this case were vested, to be enjoyed in futuro, and that the deed of the widow and devisees for the property in question conveys a good title.

The decree at Nisi Prius must therefore be reversed, and a decree entered for complainants.