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 .
In conformity with the principle before referred to, that an instrument will be construed, if possible, as not creating an estate subject to a condition, particularly a condition precedent,3 a provision in a will is prima facie regarded as conferring a vested estate, with possession thereunder deferred, and not a mere possibility of an estate; in other words, as creating, not an executory interest, but rather a vested remainder.4 Accordingly, if a prior interest is limited to others, words of futurity are usually to be regarded as indicating the time at which the ulterior estate is expected to take effect in possession, and not that at which it is to vest.5 So a devise to A, until B shall attain twenty-one, and "when" he attains that age, or "at" or "after" attaining it, to B in fee, will ordinarily be construed as giving B a vested estate, subject to a term of years in A, rather than as an executory devise to B, upon his attaining on intestacy has the somewhat singular effect of reducing what would otherwise be an estate in fee simple, by reason of the use of the words of inheritance, to a life estate in the first taken. Kellers v. Kellers, 79 N. J. Eq. 412, 82 Atl. 94,; 80 N. J. Eq. 441, 85 Atl. 340.
2. Shaw v. Ford, 7 Ch. D. 669. See Gray, Restraints on Alienation, Sec. 64.
3. See ante, Sec.Sec. 79, 80.
4. McArthur v. Scott, 113 U. S. 340, 28 L. Ed. 1015; Hawkins v. Bohling, 168 111. 214, 48 N. E. 94; Fowler v. Duhme, 143 Ind. 248; sion immediately upon the testator's death,-the word "survivors" will prima facie be construed as referring to those who may be surviving at the time of such death, since there is no other time to which it can refer.13 When, however, the gift is not to take effect immediately in possession upon the testator's death, there being a prior life or other particular interest carved out, the authorities are not in accord on the question. In England it is now the rule, contrary to the view which formerly obtained, that, in such case, the survivorship is prima facie to be referred to the time of the termination of the preceding interest, and those only who survive to that time can share as survivors, unless a contrary intention clearly appear.14 The present English rule has been adopted in some states in this country,15 while in others the former English rule still prevails, that, even when there is a preceding interest in another, the words of survivorship are to be referred to the time of the testator's death.16
Young v. Kinkead's Adm'rs, 101 Ky. 252, 40 S. W. 776; Dulaney v. Middleton, 72 Md. 67; Hall v. Priest, 6 Gray (Mass.) 20; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23; Van Brunt v. Van Brunt, 111 N. Y. 178, 19 N. E. 60; Manderson v. Lukens, 23 Pa. St. 31, 62 Am. Dec. 312; Patton v. Ludington, 103 Wis. 629, 74 Am. St. Rep. 910, 79 N. W. 1073.
5. Fearne, Cont. Rem. 242; Grigsby v. Breckinridge, 12 B. Mon. (Ky.) 629; Bredell v. Collier (Collier's Will), 40 Mo. 287.
In analogy to the rule that a condition will be construed, if possible, as subsequent rather than precedent, as well as under the general presumption in favor of vesting, words of contingency will be referred, not to the vesting of the estate, but rather to its divesting;8 and a devise to A "if" or "when" he shall attain a certain age, with a devise over in case he fails to attain that age, will prima facie give A a present estate, subject to be divested upon his death under that age, when the devise over takes effect, rather than as giving A a mere possibility of an estate, to ripen into an estate only on his attaining that age.9
Applying the same principle in favor of vesting, a devise "after" payment of debts or legacies has been construed as giving a vested estate to the devisee, subject merely to a charge for the amount of the debts or legacies.10
6. Jarman, Wills, 762; Hawkins, Wills, 237; Boraston's Case, 3 Coke, 19; Doe d. Hodgson v. Ewart, 7 Adol. & E. 636; Grigsby v. Breckinridge, 12 B. Mon. (Ky.) 629; Sammis v. Sammis, 14 R. I. 129; Roome v. Phillips, 24 N. Y. 465; Myer v. Eisler, 29 Md. 28; Bredell v. Collier (Collier's Will) 40 Mo. 287.
7. 1 Jarman, Wills, 762; Alexander v. Alexander, 16 C. B. 59;
Illinois Land & Loan Co. v. Bonner, 75 111. 316; Kingman v. Harmon, 131 111. 171, 23 N. E. 430.
8. Hawkins, Wills, 237.
9. 1 Jarman, Wills, 767; Hawkins, Wills, 240; Edwards v. Hammond, 2 Show 398, 3 Lev. 132; Bromfield v. Crowder, 1 Bos.
& P. (N. R.) 313; Watkins v. Quarles, 23 Ark. 179; Bush v. Hamill, 273 111. 132, 112 N. E. 375; Hughes v. Hughes, 12 B. Mon. (Ky.) 115; Packard v. Packard, 16 Pick. (Mass.) 191; Hancock v. Titus, 39 Miss. 224; 224; Linton v. Laycock, 33 Ohio St. 128: Rivers v. Fripp, 4 Rich. Eq. (S. C.) 278. Compare Sager v. Galloway, 113 Pa. St. 500. 6 Atl. 209.
10. 1 Jarman, Wills, 777; Neely v. Boyce, 128 Ind. 1, 27 N. E. 169; Scofield v. Olcott, 120 111. 362, 11 N. E. 351; Bowling's Heirs v. Dobyn's Adm'rs, 5 Dana (Ky.) 434; Little's Appeal, 117 Pa. St. 14, 11 Atl. 520.
Sec. 169. Limitations to "survivors." Where there is a limitation to a number of persons, whether as individuals or a class, with a provision that, on 1 ho death of any one of them, his share shall, under certain circumstances, go to the "survivor" or "survivors," the meaning of the latter word quite frequently comes in question, it being sought to give the benefit of the limitation over, not only to the actual survivors, but also to the heirs or next of kin of those who have not survived; in other words, it is sought to construe the word "survivor" as meaning 'other." The term will not. however, as is now settled, be construed as meaning "other" unless this meaning is to be inferred from other parts of the will, and consequently the heirs or next of kin of deceased donees cannot share.11 But the context may show that the word "survivor" should be read as "other," and this will usually be the case when there is a gift to several devisees, with a limitation to the. survivors, to take effect on a certain event, such as the death of any of them under age or without issue. with a gift over, upon the death of the last survivor, to a third person.12
The question has frequently arisen, in the case of a testamentary gift to the "survivor" or survivors of certain individuals, or of a certain class, as to the time to which survivorship is to be referred. If the gift is immediate,-that is, if the gift is to take effect in posscs11. 2 Jarman, Wills, 1500; 1 Underhill, Wills, Sec. 351; Ferguson v. Dunbar, 3 Brown Ch. 470, note; Bayless v. Prescott, 79 Ky. 252; Crowder v. Stone, 3 Russ. 217; Lee v. Stone, 1 Exch. 674; Baker v. Baker, 182 Ala. 194, 62 So. 284; Duryea v. Duryea. 85 111. 41; Hill v. Safe Deposit & Trust Co., 101 Md. 60, 60 Atl. 446; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Davis v. Davis, 118 N. Y. 411, 23 N. E. 568. See editorial note, 13 Columbia Law Rev. at p. 759.
12. 2 Jarman, Wills, 1508; Theobald, Wills (5th Ed.) 600; Doe d. Watts v. Wainewright, 5 Term R. 427; Wilmot v. Wilmot. 8 Ves. 10; Smith v. Smith, 157 Ala. 79, 25 L. R. A. (N. S.) 1045, 47 So. 220; Chandler v. Woelpper, 126 Pa. 562, 17 Atl. 870; Shepards Heirs v. Shepard's Estate, 60 Vt. 109, 14 Atl. 536.
13. 2 Jarman, Wills, 1532; Smith v. Horlock, 7 Taunt. 129; O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81; Carpenter v. Hazelrigg, 103 Ky. 538, 45 S. W. 666; Crossman v. Field, 119 Mass. 170; Whitney v. Whitney, 45 N. H. 311; Renner v. Williams, 71 Ohio St. 340, 73 N. B. 221; Robinson v. Jones, 222 Pa. 56, 70 Atl. 948; Reams v. Spann, 26 S. C. 561, 2 S. E. 412; Armistead's Ex'rs v. Hartt, 97 Va. 316, 33 S. E. 616.
14. 2 Jarman, Wills, 1533 et seq.; Cripps v. Wolcott, 4 Madd. 11; In re Gregson's Estate, 2 De Gex, J. & S. 428. The gift to survivors will, in such case, if the property is land, usually be a remainder rather than an executory interest, but it is convenient to refer to the matter here rather than in connection with remainders.
15. Smith v. Smith (Ala.) 47 So. 220; In re Winter's Estate. 114 Cal. 186, 45 Pac. 1063; Ridgely v. Ridgely, 100 Md. 230, 59 Atl. 731; Dary v. Grau, 190 Mass. 482, 77 N. E. 507; Sullivan v. Garesche, 229 Mo. 496, 129 S. W. 949; Hill v. Rockingham Bank, 45 N. H. 270; Slack v. Bird, 23 N. J. Eq. 238; Stout v. Cook, 79 N. J. Eq. 573, 81 Atl. 821; Vinson v. Wise, 159 N. C. 653, 75 S. E. 732; Sinton v. Boyd, 19 Ohio St. 30; Barber v. Crawford, 85 S. C. 54, 67 S. E. 7; Dent v. Pickens, 61 W. Va. 488, 58 S. E. 1029.
16. O'Brien v. Dougherty, 1 App. D. C. 148; Crossley v. Leslie, 130 Ga. 782, 61 S. E. 851; (statute); Grimmer v. Friedrich,