This being so, it necessarily follows that the devise over to John and Benjamin, in case Elisha did not have issue of his body, gave them a vested remainder in fee, subject to be defeated by the birth of issue to Elisha. The law is settled, that a remainder limited upon an estate tail will be held to be vested, though it is uncertain whether a right to possession will ever vest in the remainderman. The decision of the Court of Errors and Appeals in Moore v. Rake, 2 Dutch. 574, is directly in point, and furnishes an authoritative illustration of the manner in which this principle of law is to be applied. The devise in that case took effect in 1795, and was expressed substantially in this form:
'I give to my son Isaac, his heirs and assigns, all my lands whereon I now live, to hold to him, his heirs and assigns forever, but if my son Isaac should die without lawful issue, then I give all my land to my wife, her heirs and assigns forever."
The testator's son Isaac died in 1843, without issue, never having been married. His mother, the testator's widow, died in 1832, over ten years before Isaac. The controverted question in the case was what estate the testator's wife took under the devise. The court held that she took a vested remainder, and not by way of an executory devise, nor a contingent remainder. Each of the three judges who wrote opinions - Chancellor Williamson and Justices Elmer and Vredenburgh - so expressly declared. Justice Vredenburgh (p. 586) gave the following summary of the leading rules distinguishing a vested from a contingent remainder: "An estate is vested when there is a present fixed right of present or future enjoyment. The law favors the vesting of remainders, and does it at the first opportunity. It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. It is the uncertainty of the right which renders a remainder contingent, not the uncertainty of the actual enjoyment. A remainder limited upon an estate tail is held to be vested, though it is uncertain if the possession will ever take place." There can, therefore, be no doubt that John Curtis, by force of the devise to him, took a vested remainder in fee in the land in controversy, and it is equally certain, if such was the character of his estate, that he had good right and full power to make an effectual conveyance of it during the life of his brother Elisha.
If a different conclusion had been reached as to the nature of John's estate, and it had been found that the remainder limited to him was contingent, still I think the court would have been bound to declare, in conformity to the well-settled law on this subject, that he had full power, during the life of Elisha, to make an effectual conveyance of his estate in the land, though it was uncertain whether such estate would ever vest in possession. All contingent estates of inheritance, or possibilities coupled with an interest, where the person who is to take is certain, may be conveyed or devised before the contingency on which they depend happens. In Ackerman's Admr. v. Vree/and's Exr., 1 McCart. 23, 29, Chancellor Green said, it may be relied on as a rule, that every interest in land, however remote the possibility is, may be released. The law on this subject as stated by Sergeant Williams, in his note to Purefoy v. Rogers, 2 Saund. 388k, and adopted by the Supreme Court in Den v. Manners, Spen. 142, 145, and restated approvingly by Justice Vredenburgh in Moore v. Rake, 2 Dutch. 593, is this: " It seems now to be established, notwithstanding some old opinions to the contrary, that contingent and executory estates and possibilities, accompanied by an interest, are descendible to the heir, or transmissible to the representative of a person dying, or may be granted, assigned or devised by him, before the contingency upon which they depend takes effect." These authorities make it plain that the first question must be decided in favor of the defendant. At the date of the deed which the defendant puts forward as the foundation of its title there can be no doubt that John Curtis had full power to make an effectual conveyance of the land in controversy. * * *
In re Jackson's DEED.
4 Keyes (N. Y.), 369, and Other Cases. [Reported herein at pp. 890-902.]
13 Johnson (N. Y.), 260. - 1816.
[Reported herein at p. 460.]1
12 New York, 121. - 1854.
[Reported herein at p. 527.]
151 New York, 143. - 1896
[Reported herein at p. 533.]
1 See also Cook v. Hammond, 4 Mason, 467, Fed. Cases No. 3159. - Ed. law of prop. in land - 65
7 Rhode Island, 145. - 1862.
A second objection suggested to this title of the wards is, that the title has been forfeited under the condition imposed upon the estate for life. This condition was, that the tenant for life should pay into the hands of Elisha Harris, appointed a trustee for that purpose, yearly, the sum of twenty-five dollars. This annuity was not paid. The arrears amounted, in 1841, to the sum of $211.77, no part of which has ever been paid. It is suggested that the life-estate, by the forfeiture, was destroyed before the birth of issue, and before the remainder could, by law, vest, and so the remainder failed for want of this estate to support it.
By failure to pay, and suffering the annuity to be in arrear, the life estate became liable to forfeiture; and had the proper proceedings been taken to avoid the estate for this cause, and equity had not relieved against it, as it might, it might have been and would have been destroyed. In order to the forfeiture in such case, however, it is necessary that there should be an entry for condition broken, or claim by the heirs for the purpose of avoiding the estate.