17 D.C. 515 (D.C.D.C. 1888), 9,568, Myers v. Adler

Docket Nº:In Equity. 9,568.
Citation:17 D.C. 515
Opinion Judge:MR. JUSTICE COX:
Attorney:MR. H. O. CLAUGHTON, for complainant: MR. FRANKLIN H. MACKEY, also for complainant: MR. FRED W. JONES, for defendants:
Case Date:October 08, 1888
Court:Supreme Court of District of Columbia

Page 515

17 D.C. 515 (D.C.D.C. 1888)




In Equity. No. 9,568.

Supreme Court, District of Columbia.

October 8, 1888

1. A devise to one " during the term of her natural life, so long as she shall remain my widow and unmarried," and " from and after her death" to trustees to sell and pay certain legacies creates a life estate with a vested remainder in the trustees; the words " so long as she shall remain my widow" being merely a qualification, or condition subsequent, upon the breach of which the heirs might enter and dispossess her; but whether such entry would defeat the remainder over, quaere .

2. The distinction between a contingent remainder and a vested remainder supported by a particular estate liable to be defeated by breach of a condition subsequent annexed thereto, pointed out by the Court and explained.

3. The test of a vested remainder is its present capacity to take effect in possession whenever the prior estate shall determine.

4. Where a legacy payable out of real estate is made payable at a future time, and it is evident that the payment is withheld in order that the devisee of the estate may in the mean time enjoy the same free from the burden of the legacy, such a legacy does not lapse if the legatee die before the time fixed for payment.

APPEAL by complainant from a decree made upon a hearing in equity on bill and answer in a case involving the construction of a will.

THE FACTS are sufficiently stated in the opinion.

MR. H. O. CLAUGHTON, for complainant:

That the remainder was contingent is too plain for controversy. The test is: was the limitation over obliged to take effect at the time named in the will? If by any possibility the particular estate could have terminated before the remainder was to take effect, the remainder was contingent.

There is no decided case that at common law a contingent remainder is descendible or devisable. See Barnitz vs. Casey, 7 Cranch 456; Poor vs. Considine, 6 Wall. 458.

Judge Story, in his Equity Jurisprudence, confounds contingent remainders, with contingent interests; whereas, nothing is so well established as the difference between a contingent remainder, and executory devises and other contingent interests.

All other contingent interests stand of themselves, without any support; while a contingent remainder cannot stand alone, but must rest upon a particular estate. This distinction is the rule of this case. The Courts of Great Britain have always held that contingent interests other than contingent remainders were devisable; and it was not until the reign of William IV that, by an Act of Parliament, contingent remainders were made devisable. 8 Jacob's Fisher's Dig. 13, 633.

The effect of the grant of a contingent remainder, with covenants of warranty, is fully considered in the case of Bailey vs. Hoppin, 12 R. I., 560.

Chancellor Kent does state that contingent remainders are devisable, but he does not cite an authority to sustain the doctrine. Other text writers follow his example. In no case, however, has the decision referred to been the case of a contingent remainder.

2 Redfield, Wills, ch. 2, sec. 16, star p. 246, and the late edition of Jarman (Randolph & Talcott), vol. 1, page 149 et seq. do not use the broad language of Kent and others, but expressly state that executory interests were descendible and devisable at common law, and they cite the very cases cited by others to sustain their broad dicta.

The authors all agree that a mere contingency or possibility, not coupled with an interest, can neither descend nor be devised.

MR. FRANKLIN H. MACKEY, also for complainant:

The devise to Jane, the widow of testator, was durante viduatate — " during the term of her natural life, so long as she remains my widow and unmarried." The devise to the trustees, Adler and Libbey, was to take effect from and after the death of Jane, and not " from and after her marriage," if she saw fit to take a second husband.

It is plain that the devise to the trustees was a contingent remainder.

Fearne, Contingent Remainders (9th ed., pp. 8, 10 Butler's Notes.) " Where a contingency is limited to depend on an estate of freehold, which is capable of supporting a remainder, it shall never be construed to be an executory devise, but a contingent remainder only, and not otherwise." Fearne, Cont, Rem., 394; Poor vs. Considine, 6 Wall. 475.

The legatee died before the contingent remainder vested in the trustees. Quaere , did the legacy lapse by her death?

In Helms vs. Franciscus, 2 Bland, Ch. at...

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