While reversions have everywhere been preserved unchanged it would seem that other estates in expectancy are to be classed in most of the States as either "remainders" or "estates limited to commence in possession at a future day without the intervention of any precedent estate," in other words "springing" future estates. For the New York classification, see the R. P. L., §§ 25, 29, 43. - Ed.
give and bequeath to my beloved wife, Elizabeth Thompson, the farm on which we now reside, situate in said county, and known and described as the northeast quarter of the southwest quarter of section seven, township fifteen, range thirteen, also all my personal property of every description, so long as she remains my widow; at the expiration of that time the whole, or whatever remains, to descend to my daughter, Mary Thompson." [ The court held that the limitation of the estate during widowhood applied to the real as well as the personal property and that the expression "whatever remains" is of no vital significance, and proceeds as follows :]
It is further claimed by plaintiffs in error that the estate of the daughter was a contingent remainder, and that inasmuch as she died before the termination of the particular estate which supported it, it never vested at all. Counsel are entirely mistaken in this view. The estate of the daughter had not a single element in it that distinguishes a contingent from a vested remainder. There was certainly no uncertainty as to the person who was to take. It was Mary Thompson, the daughter, clearly. And the time of her taking in possession was equally certain, namely, when Elizabeth Thompson ceased to be the widow of the testator, whether it was effected by death or a second marriage.
A clearer example of a vested remainder could scarcely be conceived. But admitting, for argument's sake, plaintiffs in error are right upon this question, the admission is certainly fatal to their right of recovery; for, if the daughter took a contingent remainder, of necessity the widow could not have taken a fee, and their right of recovery rests entirely upon the hypothesis that she took a fee simple title under the will.
We are, in any view, clearly of opinion that the decree of the Circuit Court was right, and it is therefore affirmed.
A. Contingent remainders. 2
85 New York, 91. - 1881.
Ejectment to recover the possession of certain premises in Brooklyn. The rights of the parties depend upon the construction of a will the material parts of which are as follows:
' First. After all my lawful debts are paid and discharged, I give
1 Sec also jackson ex dem. Wells v. Wells, p. 513, supra. - En. 2 The theory of the common law future estates (reversions and remainders) is based on the idea that there must always be some one seised of an estate of and bequeath to my dear wife, Catherine Healey, the house and lot in which I now reside, and which house and lot I now own and which house and lot is situated on the northerly side of Luqueer street, in the twelfth ward, in the city of Brooklyn, aforesaid. The said described property is to be held by my said wife, after my death, to and for the chief purpose of keeping and protecting the same for her own and my daughter's benefit; provided, however, that my said wife shall prudently use the rents and benefits, if any there may be, of said property for the maintenance and support of herself and said daughter; and also, that my said wife shall be and act as the sole guardian and protector of my said daughter as long as she remains unmarried; but if she, my said wife, should get married, or otherwise commit acts contrary to the wishes of my executors herein named, then my executors shall have the power to have the control of said property taken from my said wife, and also the guardianship of my said daughter. This use and privilege of my said property to my said wife is in lieu of her dower right.
"Second. I also wish and will that if my said daughter Margaret should get married, or die without leaving any children, and that her husband should live after her death, he shall not inherit the said property or any part thereof; but if there are any children born of my daughter, and living after her death, the property shall be theirs, share and share alike, and managed accordingly by my executors.
"Third. I wish and will, that should my said daughter Margaret die without leaving any issue, then the said property shall be left to my nephew, John Foley."
freehold in the land, and upon the fact that a freehold estate to commence in futuro could be created only in connection with a present livery, for a present freehold interest, to a person other than the one in whom the future interest is to "vest." Estates less than freehold have no true relation to the system of future estates, except as the "possession" of the leasehold tenant constitutes one element in the "seisin" of the landlord.
Interests of freehold succeeding one another in time must, therefore, as they come into possession vest or clothe (vestire) their holders with successive portions of the seisin of the fee. But he who has a present fixed right to a future freehold is said to have an estate vested in interest, or vested simply. A remainder is " contingent " if it is subject to some condition precedent (which may or may not happen, either at all or within a given time) other than the natural determination of the precedent particular estate; "vested" if it is subject to no other condition precedent than that jusr indicated. A remainder then may be contingent because the person who is to take it is not yet ascertained, or because, the person being known, his right to the future enjoyment of the estate is dependent upon a contingent event. Either a vested or a contingent remainder may be defeasible by reason of a condition subsequent, but this does not alter its original character. - En.