1That is the remainder is subject to a condition subsequent - the birth of other children upon the happening of which it will be divested is part. - En.
But it is supposed the devise, immediately under consideration, presents peculiar features that withdraw it from the governing influence of these rules, and as showing this, the counsel for the plaintiff in error called our attention particularly to the words "when" and "which are come to be born of the body," in the clause "that when my said daughter departs this her natural life, the children which are come or born of her body shall hold and possess my said land and plantation." We are, however, unable to perceive anything in the latter words indicating an intent that only those of Elizabeth's children who should be living at her death, should take in exclusion of the heirs of such of them as might happen to die during her life. The sentence is certainly somewhat awkwardly expressed, but its terms are amply broad enough to cover all the children born of Elizabeth; and to hold that it confined the devise to children living at the death of the mother, would be straining a point against the often expressed unwillingness of the courts to construe a remainder contingent, when it may, without any manifest violence done to the language of the testator, be supported as vested. Doe v. Perryn, 3 Term Rep. 484. In Doe ex dem. Barnes v. Provoost, 4 Johns. R. 61, a case always received with approbation, the words used were much stronger to show an intent to postpone the vesting of the remainder until the death of the tenant for life, than those of the present will. The devise was, " to my daughter C. P., etc., during the term of her natural life, and immediately after her death I give the same unto and among all and every such child and children as the said C. shall have lawfully begotten at the time of her death in fee simple." It was strongly urged that the words "shall have" were to be used in immediate connection with the sentence "at the time of her death," the words "lawfully begotten" being merely used to confine the gift to legitimate children, whereby the limitation over would be restricted to such of the children as survived the mother, and therefore contingent. But it was held that to effectuate the intent, "begotten" must be taken as used synonymously with "born," and the subsequent words referring to the death of the mother, were employed simply as expressive of the time when the devise over was to vest in possession. The same may be said with much stronger show of reason in respect to the apparent intent of the devisor in the present case, for if there be nothing in the phrase "are come or born" to favor the construction of the plaintiff in error, it is certain that the word "when," used in this collocation, will not aid him.
Though this term may in certain cases import contingency, as, for instance, when a legacy is given to A. when he attains the age of twenty-one years, without more, King v. Crawford, 17 Serg. & Rawle, 118, yet it is settled by repeated decisions, that when it is employed as it is here, it is considered as merely marking the period at which the estate is to take effect in enjoyment, and not as postponing the period of vesting. It is scarcely worth while to run through all the cases on this point. It will be sufficient to refer to Boraston's Case, supra, as a leading authority. The devise there was, first for an estate for years, and after its determination, to the executors, for the purposes of the will, till such time as H. should accomplish his age of twenty-one years, and when H. should attain twenty-one, then to him in fee. It was contended the remainder did not vest in H. until he attained full age, but it was determined that the adverbs of time, when, etc., did not make anything necessary to precede the vesting of the remainder, but merely expressed the time when it should fall into possession. The same principle is recognized in Hanson v. Graham, 6 Ves. 239, cited for the plaintiff in error as an opposing authority, as established by all the cases, and particularly in Goodtitle v. Whitby, 1 Burr. 228, ruled by Lord Mansfield. So plainly applicable is this class of cases to the one in hand, that the attempt to distinguish it runs into a refinement of ingenuity too subtle to be practicable, and it is therefore not surprising that the counsel who essayed it found difficulty in presenting his views clearly to the court. To all that was urged by him, it would, without more, be a sufficient answer, that any other construction than that we have put on this will, would exclude the offspring of those of the children who might happen to die, pending the particular estates - an intent, in a case like the present, not to be imputed to a testator, unless it be undoubtedly manifested.
It follows, from the view we have taken, that Jacob Ditzler, eldest son of Elizabeth, and grantor to the plaintiff's ancestor, took a vested remainder in fee, immediately on the death of the testator, which opening to let in his brothers and sisters, subsequently born, left in him ultimately one-sixth part of the land in fee, expectant on the death of his mother, which passed under the conveyance made by him. The judgment of the court below in favor of the plaintiff, being for this proportion, is consequently right.
1 See also Adams v. Ross, supra, p. 483. - Ed.
(2.) Remainders After Estates-tail.1
47 New Jersey Equity, 365. - 1890. [Reported herein at p. 926.]
(3.) Remainders in Default of Appointment Under a Power.2
The LORD CHANCELLOR in
1 Vesey, Sr. (Eng.), 174. - 1748.
Next as to the inheritance; and if the plaintiff must claim this reversion in fee from her sister, she cannot have it; because being but of half-blood to her, she cannot be heir. But I am of opinion, that she may claim it from her father, who took also an estate for life by the same settlement; so that according to the ordinary rules it vested in him; and whoever takes afterward must take through him. It is certain, that where no person is seen or known, in whom the inheritance can vest, it may be in abeyance; as in a limitation to several persons, and the survivor, and the heirs of such survivor; because it is uncertain who will be survivor; but the freehold3 cannot, because there must be a tenant to the praecipe always. The fee's being in abeyance has in some cases occasioned an act of parliament to remedy it; but here it was not so; nor does the power of appointment make any alteration therein, for the only effect thereof is, that the fee which was vested, was thereby subject to be divested, if the whole was appointed; or if part so much as was not drawn out of the inheritance, still remained in the father as part of the old fee. And there is no occasion to put the inheritance in abeyance, which the court never does but from necessity, and will so mould it by opening the estate as in Lewis Bowle's Case, and several others, as best to answer the purposes of the limitations. But if the appointment was not made, it remained undisturbed.