which it is attempted to limit a contingent remainder on an estate for years or any estate less than a freehold would necessarily be to displace the principle of the common law to which we have adverted, whereby the limitation over would be avoided ab initio, and to render any conveyance of a future estate, however contingent and wanting in a freehold to support it, perfectly operative and effective to the creation and existence of such estate; the sole inquiry being whether such was the intention of the grantor. Going, therefore, upon the common law to the conclusion that the remainder over set down in this deed was not a vested remainder in Ellen, Alice, Mary, and William R. Smaw, and was void as a contingent remainder, and upon the terms of the deed to the conclusion that the intention of the grantor was that the survivor or survivors of these four children of the grantor at the death of Gulley or the end of the four-years term of his widow succeeding his death should take the land in fee, and upon section 1833 of the Code to the conclusion that such survivor or survivors were entitled to take notwithstanding the invalidity of the limitation over as a contingent remainder at common law, and the consequent inapplicability of section 1826 of the Code, it must and does follow as a final conclusion of the case, thus considered, that William R. Smaw, who alone survived Gulley, and who also alone survived the four-years term in Gulley's widow, is alone entitled to the land; and that, therefore, the bill for partition should have been dismissed.

But, as has already been said, a majority of the court, while fully concurring in the foregoing discussion and conclusion as to the unsoundness in principle, and upon authority of the definition of a vested remainder adopted by this court in the cases of Kumpe v. Coons and Gindrat v. Railway, supra, are yet unwilling to overrule those cases, on the ground that they have established a rule of property in the state. which should not now be overturned. And the position of Chief Justice Brickell is that those cases, in the respect under consideration, are sound upon principle; so that they stand as the law of this state and of this case. Under them each of the children of Jane F. and Mary A. Smaw took vested remainders in this land upon the execution of the deed, all of them being then in esse, and capable of taking in possession immediately upon the falling in of the precedent estate or estates; thus filling the terms of the New York definition of a vested remainder as followed and adopted in the cases referred to. But along with, and as a necessary part of, this New York doctrine, has sprung up another principle, which the courts, following that idea, have been forced to accommodate and adopt in order to give any effect to the manifest intention of the grantor in a deed like that under consideration. This manifest intention is that only those of the class nominated to take in remainder who shall be living at the falling. in of the particular estate shall take at all. Ordinarily, the notion of a vested remainder involves its transmissibility to the heirs of a re

KALES FUT.INT.-15

mainder-man dying pending the particular estate. But the courts at once saw that if this quality was allowed to attach to remainders under the New York definition, the result would be to entirely defeat the intention of the grantor in cases like this, inasmuch as that, while the intention clearly is to give the whole estate to those who shall survive the particular estate, and to them only, if the shares of those who do not survive, and hence were not meant to take anything, were allowed to descend to their heirs at law, the survivor would take only a portion of a whole, all which was intended for him; as, for example, this case, where the intention, tolled by the result as to survivorship, was that William R. Smaw should have the whole estate in remainder, if the descendible quality were allowed to attach to this remainder, he would take only an undivided one-fourth interest as tenant in common with the heirs of Mary, Alice, and Ellen Smaw, who died before the ceasing of the intermediate estates, and hence were not intended to take any estate whatever.

To avoid such manifest violence to the clear intent of grantors and testators, the doctrine by which such "vested" remainders were defeated through the death of such “vested” remainder-man before the termination of the particular estate was adopted and applied to all remainders acquiring their vested character only under the New York definition. Thus, in a note in the Encyclopædia of Law, it is said: "Cases founded upon the definition of a vested estate contained in the New York Revised Statutes, under which it is held that where the limitation is so framed that the persons to take as remainder-men under the description are determined eo instanti the particular estate expires, one who will answer to the description if he survive the life tenant takes a vested interest, subject to being divested in the event of his death before the life tenant." 20 Am. & Eng. Enc. Law, p. 846. So, in the leading case in New York upon this definition, it was held that the contingency of the death of one of a class, as children of B., for instance, those of whom only who survive the particular estate are to take under the deed or will, and which contingency would have clearly marked the remainder as contingent at common law,—is a condition subsequent to the vesting of the estate, and not precedent, as at common law, and, of consequence, that the happening of this contingency pending the particular estate operates to divest the already vested estate, to save it from the heirs of such decedent, and to pass it in its entirety into those of the class who shall survive the intermediate estate. Moore v. Littel, 41 N. Y. 66. This is the settled doctrine of the court of last resort of that state, which, more than any other court, is entitled to speak with controlling authority on this subject. The supreme court of the United States-one of the few courts to receive this New York idea-recognizes the same doctrine as a necessary adjunct to it. Croxall v. Shererd, supra. And if we accept the one, as we have in Kumpe v. Coons and Gindrat v. Railway, and adhere to it, as we do, by declining to overrule those cases, we must

accept and apply the other. In no other possible way can the most palpable violence to the intention of grantors and devisors in cases like the present be avoided.

Applying this doctrine of divestiture of remainders vested only under the New York notion of such estates by the death of a remainderman pending the particular estate to the case at bar, the result is the same as we reached and declared upon common-law principles in connection with section 1833 of the Code: William R. Smaw takes the whole estate. The remainders, which, according to the New York law as followed in our own cases, vested, pending the precedent estates, in Mary, Alice, Ellen, and William R. Smaw, were, by the successive deaths of the three first named, divested out of, and wholly defeated as to them, prior to the determination of the intermediate estates, and continued vested solely in him up to the time for the vesting of the estate in possession and enjoyment, as it was before in right of future possession and enjoyment; and he took the whole estate. So that, upon this view, as well as upon the other as to the constituent of vested remainders, the bill for partition should have been dismissed at the hearing. The complainant had no estate or interest in the land he sought to have partitioned.

The decree of the chancery court must, therefore, be reversed, and a decree will be here entered dismissing the bill. Reversed and remanded.50

50 In Connelly v. O'Brien, 166 N. Y. 406, 60 N. E. 20, it was held, however, that where the limitations were to the widow for life and "then to such of my children as may then be alive, share and share alike," and where a child of the testator had survived him and died before the widow leaving a child, the plaintiff, the plaintiff was entitled on the death of the widow because it had vested in her parent and she took by descent from him.

But in Hall v. La France Fire Engine Co., 158 N. Y. 570, 53 N. E. 513, where the limitations were to A. for life "and at her death to the heir or heirs of her body her surviving," and where at the date of the deed creating these limitations A. had a child, who, however, died before A., it was held that the heir of A.'s deceased child had no interest in the land so limited. The court called the remainder to the heir or heirs of the body of the life tenant "a contingent remainder."

See, also, In re Moran's Will, 118 Wis. 177, 96 N. W. 367.

Clarke v. Fay, 205 Mass. 228, 91 N. E. 328, 27 L. R. A. (N. S.) 451 (1910), was a suit in equity under Rev. Laws, c. 159, § 3, cl. 7, to reach and apply to the payment of a debt due to the plaintiff from the principal defendant the interest of that defendant under the will of his grandfather. It appeared · that that will gave the residue of the testator's property to trustees, and, after providing for certain trusts, directed that all the residue of his estate should be divided into as many equal shares as there should be at the time of his decease children of his then living or deceased leaving issue, and then, after providing for the management of the trust and the payment of its expenses, proceeded as follows: "To pay over the residue of the income of such share to the child for whose benefit such share is held, for and dur

** *

*

ing the term of such child's natural life and upon such child's death to convey transfer and pay over the principal of the share so held for such child's benefit to such child's lawful issue then living by representation; but if such child shall die without leaving lawful issue living at the time of such child's death then upon such child's death to add the principal of the share held for such child's benefit equally to the shares held for the benefit of my other children then living, * * provided however that the lawful issue then

living of any other child of mine who shall have theretofore deceased shall take and have (and there shall be paid and conveyed to such issue)—by right of representation the same part of such principal which would have been added to the share which would have been held for the benefit of such issue's deceased parent if such issue's deceased parent was then living." When the bill was filed the father of the principal defendant was living. Defendant had two unmarried sisters, who as well as he were born before the death of the testator. He had had five aunts, who were living at the death of the testator, one of whom had died, leaving issue, one of whom was a childless widow, two of whom were married, each of them having a married son without issue, and one of whom was married and had a minor unmarried son. Held, that the interest of the principal defendant in his share of the fund of which his father enjoyed the income, although his enjoyment of it was contingent on his surviving his father, was assignable property, which could be reached and applied under the statute, but that his interest in the funds of which the incomes were enjoyed respectively by his aunts, and a part of which would come to him if, after his father's death and during his own lifetime, any of his aunts should die without leaving issue, was not property, but a mere possibility of property, which could not be reached under the statute."

MISCELLANEOUS LEGAL CONSEQUENCES WHICH DEPEND UPON THE CHARACTER OF THE REMAINDER AND ARE OFTEN SAID TO BE DETERMINED ACCORDING AS THE REMAINDER IS VESTED OR CONTINGENT.-The union of the particular estate and the contingent remainder in the same person will not cause the termination of the particular estate (Cummings v. Hamilton, 220 Ill. 480, 77 N. E. 264), while the coming together of a particular estate and the next immediate estate in remainder, which is vested and larger than the particular estate, will terminate by merger the particular estate and cause the remainder at once to vest in possession (Bond v. Moore, 236 Ill. 576, 86 N. E. 386, 19 L. R. A. [N. S.] 540; Whitaker v. Whitaker, 157 Mo. 342, 58 S. W. 5; Boykin v. Ancrum, 28 S. C. 486, 6 S. E. 305, 13 Am. St. Rep. 698). This rule of merger, it is believed, is based upon the strictly feudal or common law distinction between vested and contingent remainders.

The rule against perpetuities only requires that the future interest shall vest within lives in being and twenty-one years after its creation. "Vest" here does not mean vest in the sense of being non-contingent, nor does it mean vest in possession. It means vest in the feudal or common law sense of that term. Hence in applying the rule against perpetuities it may become of vital importance to determine what interests are vested in that sense, so as to determine whether the future interest does or does not violate the rule against perpetuities. Madison v. Larmon, 170 Ill. 65, 48 N. E. 556, 62 Am. St. Rep. 356; Howe v. Hodge, 152 Ill. 252, 38 N. E. 1083; Chapman v. Cheney, 191 Ill. 574, 61 N. E. 363.

The person with a vested remainder must be made a party to a decree in chancery or he will not be bound by it. A contingent remainderman may be bound by the decree by representation. McCampbell v. Mason, 151 Ill. 500, 38 N. E. 672; Temple v. Scott, 143 Ill. 290, 32 N. E. 366; Thompson v. Adams, 205 Ill. 552, 69 N. E. 1. This may refer to the common law or feudal distinction.

If the remainder be subject to a condition precedent in form that the remainderman to take must survive the life tenant, then if the remainderman dies before the life tenant no interest passes from him, for he obtained nothing. On the other hand, if the remainder be not subject to any such condition precedent of survivorship and if there is no divesting clause operating in the events which happen, the remainderman will have an interest transmissible at his death. The question, which situation exists, is fundamentally merely one of construction. What is the meaning of the language used? Is there a condition precedent of survivorship or not? Nevertheless, if the remainder is subject to a condition precedent in form of survivorship, it is, according to the feudal or common law distinction, a contingent remainder. On the other hand, if it is not subject to such condition precedent of survivorship it is vested and that whether it be subject to a gift over or not. Hence the purely practical question of construction is continually dealt with

CHAPTER V

LIMITATIONS TO CLASSES

RULE IN WILD'S CASE.

Hawkins on Wills (2d Ed.) 243: A devise of real estate to A. and his children, A. having no children at the time of the devise, vests in A. an estate tail; "children" being construed as a word of limitation. (Wild's Case, 6 Rep. 16b; see Webb v. Byng, 2 K. & J. 669.)

The rule does not apply to bequests of personal estate. (Audsley v. Horn, 1 De G., F. & J. 226.)

"The time of the devise appears to mean the date of the will," and not the death of the testator. (Buffar v. Bradford, 2 Atk. 220; [Grieve v. Grieve, L. R. 4 Eq. 180; Seale v. Barker, 2 B. & P. 485; Clifford v. Koe, 5 A. C. at p. 471.])1

Co. Lit. 9a: B. having divers sonnes and daughters, A. giveth lands to B. et liberis suis, et a lour heires, the father and all his children to take a fee simple joyntly by force of these words (their heires); but if he had no childe at the time of the feoffment, the childe borne afterwards shall not take.

Sheppard's Touchstone, 436: If one devise his land to the children of I. S., by this devise the children that I. S. hath at the time of the

by the courts and judges on the basis of whether the remainder is vested or contingent according to the feudal or common law distinction.

In such cases the courts, not being faced with any consequences of destructibility or inalienability, have not infrequently reached doubtful results. See ante, pp. 169, 170, note 34; Cummings v. Hamilton, 220 Ill. 480, 77 N. E. 264; People v. Byrd, 253 Ill. 223, 97 N. E. 293; Drury v. Drury, 271 Ill. 336, 111 N. E. 140. Post, pp. 477, 594.

It is clear that partition cannot be had by a contingent remainderman, but may be had by a non-contingent and indefeasibly vested remainderman. Ruddell v. Wren, 208 Ill. 508, 70 N. E. 751; Dee v. Dee, 212 Ill. 338, 354, 72 N. E. 429. It may not be permitted to a remainderman having a vested remainder according to the common law or feudal definition if that remainder is uncertain ever to take effect, because it is subject to a gift over on events which may happen before it vests in possession. Goodrich v. Goodrich, 219 Ill. 426, 76 N. E. 575; Cummings v. Hamilton, 220 Ill. 480, 483, 77 N. E. 264 (as to 180 acres), semble; Seymour v. Bowles, 172 Ill. 521, 50 N. E. 122. Hence the question of whether a remainder may be partitioned does not depend upon the application of the purely common law or feudal distinction between vested and contingent remainders. 1 Ill. Law Rev. 184.

1 The rule in Wild's Case was applied in Lofton v. Murchison, 80 Ga. 391, 7 S. E. 322. It was held to have been abolished by implication by the statute which makes a devise to A. simpliciter prima facie the devise of a fee, in Davis v. Ripley, 194 Ill. 399, 62 N. E. 852, and Boehm v Baldwin, 221 Ill. 59, 77 N. E. 454.