Williamson, &C. v. Williamson, &C.
| Decision Date | 06 October 1857 |
| Citation | 57 Ky. 329 |
| Court | Kentucky Court of Appeals |
| Parties | Williamson, &c. <I>vs.</I> Williamson, &c. |
APPEAL FROM KENTON CIRCUIT.
Moore & Wallace, for appellants —
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Thos. A. Marshall, on the same side —
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Geo. B. Hodge, for appellant —
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Geo. T. Williamson and H. C. Harris for appellees —
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The last will and testament of General James Taylor contains the following devise of land owned by him in Kenton county in this state:
"I direct 1,200 acres of my Bank Lick tract (except `the part hereinafter devised to my daughter `Jane,) be divided into four tracts or parcels, all of `which shall be of equal value, as near as may be `possible; and I give and bequeath unto each one of `my said children one lot or tract. The tracts or lots `which I give to my daughters they are to have, hold, `and enjoy the rents and profits of the same for their `separate and sole use during their natural lives, `and at their deaths the title to the same is to vest in their `heirs in fee forever. The lot or tract which shall fall, `or be allotted to my son James, out of the said `Bank Lick tract, I hereby give to him and his heirs `forever:"
The testator directed the balance of the land he owned in Kenton county to be sold and disposed of, if his heirs should desire it, but if they should not wish it to be sold, it was to be equally divided among them. He had three daughters, and one son; and after his death the land referred to was divided between them, they having preferred a division to a sale of it.
At the death of the testator, Mrs. Williamson, one of his daughters, had nine living children — two of whom have since died, under the age of twenty-one, and without issue; and two-ninths of the land alloted to their mother in that division is claimed by their father, George T. Williamson, as their heir at law, and also by virtue of a conveyance to him of the life estate therein of his wife deeded to him by Alexander F. Willis, to whom it had been previously conveyed by his wife and himself in the year 1855.
Mrs. Williamson and her husband, in the same year, conveyed to Keturah and James T. Williamson, two of her children, two undivided ninths of the same tract of land, and this action, to which they made their father and mother and brothers and sisters defendants, was brought by them for partition of said land.
The circuit court decided that the plaintiffs were entitled to partition; that their father was entitled to two undivided ninths of the land, and directed their respective shares to be allotted to them. From that judgment the infant defendants have appealed.
The principal questions in the case relate to the nature and character of the estate devised to the testator's grandchildren, and the power of the devisee for life to execute the deeds relied upon by the parties.
On the part of the appellants it is contended, as it regards the first question, that the devise in remainder being to the heirs of the devisee for life, and the vesting of the title being restricted by the express words of the devise to the time when the life estate should terminate, the remainder is contingent and not vested, and consequently nothing passed by descent to the father upon the death of the two children of Mrs. Williamson.
On the other side, it is contended, that the persons referred to by the testator, as the heirs of his daughters, are manifestly their children, who are the persons entitled in remainder, and that as they were capable of taking, at the time of the testator's death, the estate in remainder vested in such of them as were then living, and in after-born children as they came in esse. It is also contended that if the word "heirs," as employed in the will, is to be understood according to its technical meaning, still, under the settled principles of the law, the reminders were vested and not contingent.
The word "heir," in its strict technical sense, denotes the person on whom, at the ancestor's decease the law casts the inheritance. During the life of the ancestor the heir must therefore be considered as a person either not in being or not ascertained, inasmuch as it is uncertain who will fill that character at the time of the ancestor's death. It would seem then to follow, that a limitation to the heirs of a person in existence, if it have the other qualities of a remainder, must be a contingent remainder. And such a limitation comes precisely within Mr. Fearne's 4th class of contingent remainders, viz: "Where the `person to whom the remainder is limited is not yet `ascertained, or not yet in being." (Fearne on Remainders, chap. 1, sec. 2, side page 5.) And in Jarman on Wills, 2 vol. side page 13, the author says, "It is `clear no person can properly sustain the character `of heir in the life time of the ancestor."
The principle recognized in the case of Walters &c. vs Crutcher &c., 15 B. Mon. 10, "that the present `capacity of taking effect in possession, if the possession `were to become vacant, and not the certainty `that the possession will become vacant, before `the estate limited in remainder determines, `universally distinguishes a vested remainder from `one that is contingent," is strongly relied on to prove that the remainder in this case was vested and not contingent. But this principle, however general and universal it may be, has no application in a case like this, where the event which renders the possession vacant also resolves the contingency upon which the limitation depends, and makes that certain which was before uncertain. The possession becomes vacant by the death of the ancestor, and by the same event the persons who properly sustain the character of "heirs, are ascertained and rendered certain. This rule, therefore, cannot operate as a test in a case like this, where the estate in remainder is given to the heirs of the same person, who is devisee for life. But suppose A to be devisee for life, with remainder to the heirs of B, and then apply the rule relied upon, on, in order to determine whether, during the life of B, the remainder would vest in his heirs, or be contingent, and it will be a fair application of the rule in an analagous case. In such a case, if the possession were to become vacant by the death of A, prior to the death of B, the estate in remainder could not take effect in possession, because during the life of B there would not be any person that could, properly and technically speaking, sustain the character of his heir, and therefore the limitation in remainder would fail, the death of B in the lifetime of A being the contingency on which it depended.
One of the examples given by Fearne, under this class of contingent remainders, exemplifies the inapplicability of the rule adverted to in Walters, &c. vs Crutcher, &c., in such cases. Thus, if an estate be limited to two for life, remainder to the survivor of them in fee, the remainder is contingent, for it is uncertain who will be the survivor. (Fearne on Con. Rem. 9.)
Now in this case, during the whole time of the continuance of the life estate, the remainder could take effect, if the possession were to become vacant, by the termination of the life estate, but it would be because the event which determined the life estate resolved the contingency, and rendered that certain which was before uncertain. But the estate in remainder, notwithstanding its present capacity to take effect in possession, if the life estate were to terminate, would be contingent and not vested.
Under the operation of the rule in Shelly's case, limitations to the heirs of a person who took a preceding estate of freehold were exceptions to the class of contingent remainders within which they appeared literally to fall; not however because the remainder vested in the heirs, but because, in such cases, the remainder to the heirs was immediately executed in the ancestor. Therefore, under this celebrated rule, the principle was established that a remainder to the heirs of a person who took a preceding estate of freehold, never was contingent on account of any event arising from the particular estate, taking that determination singly, but if contingent at all, became so in consequence of some other contingency in the limitation. But this principle resulted from the operation of this rule alone, and consequently the doctrine to which we have been referred, in Preston on Estates, in his treatise on the rule in Shelly's case, has no application here, where the rule is not in force; and the question, whether a remainder to the heirs of a person who takes a preceding estate of freehold is vested or contingent, must be determined on general principles, inasmuch as the limitation in remainder does not vest in the ancestor, nor enlarge his estate, but the heirs take under the will as purchasers, whether their interest be vested or contingent. In such a case the ancestor takes nothing but a life estate, and the devisees in remainder do not take as his heirs, but take under the will — the person or persons answering this description at his death, if the term be used in its legal sense, being the devisees, and...
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