This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
As has been previously stated,91 an instrument will not be construed as creating an estate on condition, if this can be avoided, and language creating a condition will be regarded as creating a condition subsequent rather than a condition precedent.92 As a result of these considerations, and to some extent, perhaps, of the possibility of the destruction of a contingent remainder, as subsequently explained,93 a result which the courts would naturally seek to avoid,94 it is a well settled rule that a limitation will not be construed as creating a contingent remainder if it can possibly be construed as creating a vested one.95 This general rule has been applied in con91. Ante Sec. 79.
92. Ante Sec. 80.
93. Post Sec. 140.
94. Ives v. Legge, 3 Term Rep. 488, note.
95. Jarman, Wills, 756 et seq.; 4 Kent's Comm. 204; In re Whitney's Estate (Cal.) 167 Pac. 399; Clanton v. Estes, 77 Ga. 352, 1 S. E. 163; Mettler v. Warner, 243 111. 600, 90 N. E. 1099, 134 Am. St. Rep. 388; Davidson v. Bates, 111 Ind. 391, 12 N. E. 68; Archer v. Jacnection with a considerable number of expressions implying futurity of time, or contingency, which, instead of being construed as conditions precedent, are regarded merely as expressions employed by the testator or settlor in carrying on the series of limitations.95a Thus in the case of a limitation to A for life, and "on," "at," "from," "after," or "in the event of" A's death, to B, the words in quotations are regarded, not as conditions precedent, but as merely descriptive of the event on which the remainderman may be expected to acquire the right of possession, and the remainder is consequently vested.96 Applying the same rule of construction it has been held that when after a life estate has been limited in favor of A, an estate in fee simple is limited in favor of B if he live to a certain age, and if he fail to reach such age, then over to another, B takes prima facie a vested remainder, liable to be divested by his death before the age named, and not a contingent remainder, as being subject to a condition precedent of his arrival at the age named.97 And in the case of a devise to obs, 125 Iowa, 467, 101 N. W. 195; Bunting v. Speek, 41 Kan. 424, 3 L. R. A. 690, 21 Pac. 288; Blaine v. Dow, 111 Me. 480, 89 Atl. 1126; Straus v. Rost, 67 Md. 465, 10 Atl. 74; Gray v. Whitte-more, 192 Mass. 367, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246, 78 N. E. 422; Rood v Hoovey, 50 Mich. 395, 15 N. W. 525; Chew v. Keller, 100 Mo. 362, 13 S. W. 395; Hood v. Maires, 255 Pa. 128, 99 Atl. 481; Burton v. Provost, 75 Vt. 199, 54 Atl. 189; Cottrell v. Mathews, 120 Va. 847, 925 E. 808; life estate,4 though until one of such children is horn, the remainder is necessarily contingent5 The benefit of the limitation cannot extend to persons who become members of the class after the expiration of the particular estate, since this would involve a violation of the rule, elsewhere referred to,6 that the vesting must occur before or at the expiration of the particular estate7
95a. Ante Sec. 135, a, note 46.
96. Doe d. Poor's Lessee v. Considine, 6 Wall. (U. S.) 458; Bruce v. Bissell, 119 Ind. 525, 12 Am. St. Rep. 436, 22 N. E. 4; Lingo v. Smith, 174 Lowa, 461, 156
N. W. 402; Bowling v. Dobyns, 5 Dana (Ky.) 434; Martin v. Cook, 129 Md. 195, 98 Atl. 489; Pike v. Stephenson, 99 Mass. 188; Chew v. Keller, 100 Mo. 362, 13 S. W. 395; Parker v. Ross, 69 N. H. 213, 45 Atl. 576; Ballentine v. Wood, 42 N. J. Eq. 552, 9 Atl. 582; Corse v. Chapman, 153 N. Y. 466, 47 N. E. 812; McNeely, 82 N. Car. 183; Worn-rath v. McCormick, 51 Pa. St. 504; In re Rau's Estate, 254 Pa. 464, 98 Atl. 1068.
97. 1 Jarman, Wills, 767; Edwards v. Hammond, 3 Lev. 132; Bromfield v. Crowder, 4 Bos. & P. 313; Richardson v. Penicks, 1 App. D. C. 261; Hersey v. Purrington, 96 Me. 166, 51 Atl. 865; Blanchard v. Blanchard, 1 Allen (Mass.) trustees until testator's son comes to the age of twenty-one, and if or when he attains that age, then to him in fee, he is regarded as taking a vested remainder upon a term of years in the trustees, and not a contingent remainder, to vest only when he arrives at the age named.98
In the case of a limitation by will in favor of testator's widow for life, or until she marries again, with a devise to B, "in case of such marriage," the words in quotations are ignored, and B, instead of having a mere possibility, on the theory that his estate is subject to the condition precedent of the widow's marriage, has a vested remainder, an estate, giving him the right of possession on the termination of the widow's estate, by reason of either her death or her marriage.99