1 N. Y. R. P. L. §§ 26-2S, 30. - ED.
Preferring first his wife; then Margaret and her issue; he next casts the estate upon the nephew and his heirs, preferring them to possible husbands, or strangers to his blood.
We do not think, therefore, that, by the terms of the will, Foley's estate was limited upon the added contingency of his survival of Margaret. It follows that his right was descendible to his heirs, both at common law and under the statute, unless some other legal difficulty intervenes.
Such difficulties are suggested. The one founded upon the doctrine of the common law, that the heir of a primary devisee can never take by substitution unless the estate vests in such primary devisee, we do not think has a proper application to the case before us, but if it has, will find its answer in the changed provisions of our statutes, and also in the views presently to be taken of their effect upon contingent remainders.
But a further difficulty is founded upon the denial to the estate of Foley of any descendible quality, upon the ground that it never vested in him, and was nothing, in fact, but the possibility of acquiring an estate. The logic of this view is very forcibly presented in a case similar to and yet different from the one before us, by the dissenting opinion of Grover, J. Moore v. Littel, 41 N. Y. 66. The court did not concur in the reasoning, or the conclusion to which it led. Followed steadily to its logical consequences, it would apparently take out of the operation of the statute a large class of future estate, upon the ground that they are mere possibilities, and not estates at all. The collision at the bottom of that case was over the character of a contingent remainder limited to the heirs of a person then living. The majority of the court, founding their opinion upon the definitions of the Revised Statutes, and their express authority, held that the children of John Jackson had, during his life, and notwithstanding the uncertainty of their ever living to be his heirs, an expectant estate which could be aliened. The dissent went upon the ground that such children, during the life of the father, had no estate at all, but only the possibility of acquiring one, which, therefore, was not the subject of a conveyance. The case differed from the one under consideration in many respects, but at least settles the question that such a contingent right as was devised to John Foley is within the definition of expectant estates, and governed by the provisions of the Revised Statutes.
It is true that to allow of title by descent there must be something to descend; and what that is, in a case of contingent remainder, which may never vest either in interest or possession except a mere possibility of acquiring an estate, is a question which the mandate of the statute sufficiently answers, but which may also be answered on principle. John Foley had something more than a mere possibility of acquiring an estate; he had the fixed, absolute right to have the estate if the contingency occurred. That right was conferred by the will of the testator, and vested in him at the instant of the latter's death. The devisee held it as a vested right, but such a right as the contingent and uncertain character of the devise created; nevertheless a fixed and vested right, which the Revised Statutes recognize as an estate, place in the category of expectant estates, and decree shall be descendible, and which, as we have already seen, was descendible even at common law. In his chapter on executory devises Washburn reminds us of the necessity of distinguishing " between the vesting of a right to a future estate of freehold, the vesting of a freehold estate in interest, and the vesting of the same in possession." 2 Washburn on Real Property, 664.
We do not agree, therefore, with the opinion of the General Term, while we concur in the result of their decision. They held, as the respondent claims, that Foley took a vested remainder, subject to be divested by the contingency of Margaret's death, leaving issue, such contingency operating as a condition subsequent. This construction drives us to give Margaret an estate for life by implication, upon a very doubtful and debatable state of facts, at the peril of holding that, after the death of the mother, the daughter had no interest in the property during the rest of her life, and was bound to surrender it and its income to Foley. We do not accuse the testator of any such unreasonable and unexplainable purpose.
Nor can we see that Foley took a vested remainder under the definition given by the Revised Statutes. The present capacity of taking effect in possession if the possession were to become vacant, was the test at common law. Fearne on Rem. (7th ed.) 216. When the person to whom a remainder after a life estate is limited is ascertained, and the event upon which it is to take effect is certain to happen, the remainder is vested. Williamson v. Field, 2 Sandf. Ch. 533 If, at the ceasing of the precedent estate, it would be uncertain who was entitled or whether the event upon which it was limited would happen, then the remainder is contingent. Moore v. Little, supra, 79. Here the event upon which Foley was to take at all was uncertain. At the death of the widow, the termination of the precedent estate, it was still uncertain if Foley would ever take, and whether he should or not depended upon a contingency yet to happen. It is possible that, by giving to Margaret a life estate after the death of the widow, the case might be brought within the rule stated in Moore v. Littel by Judge Woodruff, that where the same event - in this case the death of Margaret - at the same time, eo instanti, terminated the precedent estate, and settled the contingency, the remainder was vested. But that was said of a remainder to the heirs of one living, and we think does not fairly apply to the case before us. And, besides, the doctrine was not assented to by three of the judges, and the case was really decided upon the ground (which strongly sustains the conclusion we have reached) that the remainder was contingent, but nevertheless an expectant estate, as defined by the Revised Statutes, and as such alienable.