moment A.'s estate terminates, but if A. should survive B., B.'s interest goes to his heirs, devisees or alienees. Where an estate to A. for life and after his decease to the eldest son of B., living at the time of A.'s decease and his heirs is limited, a contingent remainder is created. §176. Distinction Between Vested and Contingent Estates. The legal distinction between vested and contingent estates is not always clear, but courts have agreed in, first, favoring the vesting of interests, and second, in treating future interests as vested where there is any present interest in the income of the property3. A vested estate, whether present or future, may be absolutely or defeasibly vested. In the latter case, it is vested, subject to being divested on the happening of a contingency subsequent*. In general it may be said that by the statute, contingent estates are made to depend upon two conditions, one is while the person to whom the estate is given remains uncertain, and the other when the event upon which such estates are limited to take effect remains uncertain. When a grant is "limited to a man and the heirs of his body, without any further specification," an absolute fee vests in the grantee. It is manifest that although estates tail are abolished, the statute has given to what would otherwise be such an estate the force of an estate in fee simple, and has provided that when a remainder is limited, if an estate tail were permitted, would be such an estate, such remainder shall be valid as a contingent limi 3. Toms V. Williams, 41 Rep. 310, 50 N. W. 1077. Mich. 552, 2 N. W. 814. 4. L'Etourneau v. Henquenet, 89 Mich. 428, z8 Am. St. 5. Rhodes v. Bouldry, 138 Mich. 144, 101 N. W. 206. 6. C. L. '97, §8785. tation upon a fee, and shall vest in possession on the death of the first taker without issue living at the time of such death". §177. Opening of Vested Remainders for Newly Born Remainderman. Where life estates, by purchase, became merged in the vested estates in remainder, and no interest was outstanding, no portion of the title could be divested except by the birth of another child; but this could not divert the entire title of either, for the reason that it would only take away so much of the title as would give the newly born heir an equal interest with thems. $178. Vested Defeasible Remainders. The rule is well established that the estate is created at the death of the testator, and not at the time the will is executed and that the time of remoteness is to be determined from the time of the death of the testator, and it is said that although the creation of the estate takes place at the testator's death, the lives must be then in being. A vested remainder may be conditional the same as other estates, and it is manifest that although the remainderman is in existence at the time of the determination of the particular estate, the vested remainder will not always take effect. Thus, where A. died-not surviving the testator under a devise to A. for life after his death to B., and, in case of B.'s death without heirs to C. and D. with a re 7. C. L. '97, §8786. Goodell v. Hibbard, 32 Mich. 47. 8. Hovey v. Nellis, 98 Mich. 374, 57 N. W. 255. mainder over to E. upon a like contingency, C. and D. do not take successive estates in the land, but each took a defeasible fee in an undivided moiety, upon B's death without issue9. §179. Contingency Resting Upon Person. It is manifest that where an estate is made contingent upon the death of a devisee, no estate vests until his death, and no interest passes to the next taker by the terms of the will, except a contingent estate, which ceases with his death, if he died before the devisee1o. §180. Difference of Time of Vesting Estates Where Time of Payment is Postponed. The rule is well stated and settled that if a testator gives a legacy to A. B. at the end of 10 years after his death, the legacy is contingent, but if he gives it to A. B. to be paid to him at the end of the 10 years, it is vested11. It is said that when there is doubt whether the words of contingency or condition apply to gifts or to the time of payment, courts are inclined to construe them to apply to the time of payment, and to hold the gift rather as vested than contingent12. §181. The Time When Contingent Estate Became Vested. The general rule is that the law favors the vesting of estates at the earliest possible moment and therefore favors 9. Mulreed V. Clark, 110 Mich 229, 68 N. W. 138. 10. Fitzhugh v. Townsend, 59 Mich. 427, 27 N. W. 561. 11. Hibler V. Hibler, 104 Mich. 274, 62 N. W. 361. 12. McCarty V. Fish, 87 Mich. 48, 49 N. W. 513. the vesting of a contingent estate as soon as the contingency happens upon which it is based. Thus, where the contingency of the bequest rested upon the legatee making a choice, the moment the legatee exercised the right of choice by demanding the entire legacy, it became vested when the choice was exercised13. A vested contingent remainder takes effect in the surviving children and the heirs of any deceased child, where upon creating and vesting future estates the testator declares that, in the event of the life estate failing through the death of any of the devisees, the share of such devises to be equally divided among the remaining devisees"14. Where a testator gave his widow an estate for life in all property and in a residuary clause he declared that on her death the property should be equally divided between his "surviving children," a vested estate passed to all the children surviving at his death, and the heirs at law of any child who died before the widow were entitled to the share of their ancestor unless the will indicated otherwise15. An estate in remainder vests on the decease of the testator under a will devising a life estate in the widow and the remainder to the children "now living, or who may be at the time of her decease," to be equally divided1o. §182. When a Vested Estate is Divested. Where under a will the testator declared that after the expiration of two years a legacy was to be paid upon the 13. Smith v. Jackman, 115 Mich. 192, 73 N. W. 228. 14. L'Etourneau V. Henquenet, 89 Mich. 428, 28 Am. St. Rep. 310, 50 N. W. 1077. 15. Porter V. Porter, 50 Mich. 456, 15 N. W. 550. 16. Rood v. Hovey, 50 Mich. 395, 15 N. W. 525. proviso that if in the judgment of the executors the legatee was a reformed man he should receive the legacy, the vested estate became divested through the provision which made it conditional17. §183. Property Out of Which Legacies are Payable or Charged. The general rule is that the personal estate is the fund for the payment of legacies provided the testator has not declared otherwise18, but when the personalty fails the realty may be charged therewith. A present vested estate is created in the legatee at the death of the testator subject to a trust where a devise to minor children consists of the net accumulations of a mixed fund of realty and personalty in the form of rents and profits out of which a certain amount is to be paid to them annually upon the youngest reaching the age of majority19. §184. Types of Contingencies Upon Which Estates Depend. "I give and devise to my wife, Caroline my farm in the township of Freedom, county and State aforesaid, consisting of two hundred acres, to be enjoyed by her as long as she shall remain my widow. In case of her marriage my daughter Caroline shall take the said farm, to be enjoyed by her during her life, and after her decease the said farm shall be divided among her issue, share and share alike." "I give and bequeath to my said wife all my personal 17. Markham v. Hufford, 123 Mich. 505, 48 L. R. A. 580, 81 Am. St. Rep. 22, 82 N. W. 222. 18. McCarty V. Fish, 87 Mich. 48, 49 N. W. 513. |