a petition for a decree of partial distribution, Marion De Vries appeals. Reversed. Marion De Vries, in pro. per. Nutter & Orr, for respondent.

such death of my son M. occur before the property herein devised and bequeathed to him vests in him, then, all the interests herein devised and bequeathed to said M. shall pass to and vest in" his wife absolutely. Other provisions showed that testator clearly understood the legal significance of words of present devise unqualified by other language. Civ. Code, § 694, provides HART, J. The single question submitted that a future interest is vested when there is a on this appeal, which is prosecuted from an person in being who would have a right to im- order or decree denying the petition of the mediate possession upon the ceasing of the pre-appellant for a decree of partial distribution cedent interest. Section 695 provided that a future interest is contingent while the person in whom or the event upon which it is limited to take effect remains uncertain; and section 1341 provides that devises and bequests are presumed to vest at testator's death. Held, that son M. took a vested remainder in the estate devised to him immediately upon testator's death. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*] For other definitions, see Words and Phrases, vol. 2, p. 1498; vol. 8, pp. 7302-7309, 7827.] 2. WILLS (8 634*)-ESTATE DEVISED-VESTED REMAINDER.

The intention of testator should control in determining whether a future interest devised is vested or contingent.

[Ed. Note.-For other cases, see Wills, Dec. Dig. § 634.*]

3. WILLS (§ 634*) - CONSTRUCTION DEVISED VESTED REMAINDER.

ESTATE

In view of Civ. Code, § 1317, and the following sections, relating to the interpretation of wills, in determining whether a future interest is vested or contingent, testator's intention thereon must be gathered from the language of the will construed in view of established rules of construction.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*]

4. WILLS (§ 634*)-ESTATE DEVISED-VESTED REMAINDER.

of the estate of William H. De Vries, deceased, is whether the remainder to said appellant, provided for by the fourth clause of the last will and testament of said deceased, is vested or contingent. The court below, two of the judges thereof presiding at the hearing and concurring in the conclusion vised to the appellant, Marion De Vries, to therein reached, held the remainder so debe contingent. The decision of the question presented here must obviously rest on the intention of the testator, and, in turn, such intention must be gathered from an interpretation of the language of the last will and testament of the testator.

The language of said testament particularly pertinent to this inquiry reads:

"Second. I give, devise and bequeath all the property of which I may die seised and possessed, both real and personal, to my beloved wife, Mary Jane De Vries, for her natural life, the remainder thereof to my sons hereinafter named in proportions for the time and upon the conditions hereinafter expressed: ** * *

"Fourth. Upon the termination of the life The test of whether a future estate devised estate hereby created in my wife, Mary Jane is vested is whether there exists in an ascertained person a present fixed right of future De Vries, I give and devise unto my son. enjoyment of the estate limited, which will take Marion De Vries, all those certain lots, pieceffect in possession immediately on the deter-es and parcels of land, situate. * * * mination of the precedent estate, irrespective of any collateral event.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*] 5. WILLS (§ 629*) - CONSTRUCTION - VESTED

INTERESTS.

While testator's wishes will be effectuated, if possible, the law prefers to consider future estates as vested rather than contingent. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1461, 1462; Dec. Dig. § 629.*] 6. WILLS (§ 629*)-ESTATE DEVISED-VESTED

INTEREST.

The use of words of present gift in a will is construed as creating a vested interest, in the absence of other controlling circumstances. [Ed. Note. For other cases, see Wills, Dec. Dig. § 629.*]

7. WILLS (§ 634*)-ESTATE DEVISED-VESTED REMAINDER.

A provision that "upon the termination of said life estate I give, devise and bequeath all those certain lots," etc., to testator's son, in the absence of other provision or conditions, gave such son a vested remainder in the lots.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*]

Appeal from Superior Court, San Joaquin County; Frank H. Smith, Judge.

In the matter of the estate of William H. De Vries, deceased. From an order denying

"If my son, Marion De Vries, should precede in death his wife, Minnie L. De Vries,

and leave him no lawful issue surviving, and should such death of my son, Marion De Vries, occur before the property herein devised and bequeathed to him vests in him. then, all the interests herein and hereby deVised and bequeathed to said Marion De Vries shall pass to and vest in and become the property of said Minnie L. De Vries, my son, Marion's wife, absolutely and forever."

The contention of the appellant is that, under the terms of said will, that portion of the estate so devised to him vested in him, by virtue of the provisions of section 694 of the Civil Code, immediately upon the death of the testator. Reproduced in the transcript on appeal is the written opinion of the learned trial judges, in which they set forth their reasons for the conclusion reached by them adversely to the contention of appellant, and from said opinion we gather that their posi tion is planted principally on their interpretation of the language of the clause of the testament devising to appellant out of the life estate a certain interest in remainder. The argument appears to be that the words,

of the intermediate or precedent interest," and, continues the same Code, "a future interest is contingent, whilst the person in whom, or the event upon which, it is limited to take effect remains uncertain." Section 695.

"Upon the termination of the life estate | sented here. "A future interest is vested," hereby created in my wife, Mary Jane De says our Civil Code, § 694, "when there is a Vries, I give and devise to my son, Marion person in being who would have a right, deDe Vries, all those certain lands," etc., clear- feasible or indefeasible, to the immediate ly imply an intention on the part of the tes-possession of the property, upon the ceasing tator to fix "the time when said estate is to vest not only in interest but also in possession" as at the termination of the life estate. In other words, it is held by the court below that by use of the words "upon the termination of the life estate" the testator intended to say that the interest in remain- [4] In the case of the Estate of Washburn, der to Marion De Vries should not vest un-11 Cal. App. 735, 741, 106 Pac. 415, 418, this til after the determination of said life estate, and this construction of the testament, în so far as it affects the devise to the said Marion, is sustained, so the reasoning proceeds, by the provision for the wife of said Marion in the event that the latter should precede in death the former, leaving "him no lawful issue surviving."

[1] We are unable to assent to the construction thus given the instrument in question and the conclusion arrived at by the court below therefrom.

It is, of course, to be conceded that great difficulty often arises in determining whether a vested or contingent remainder was intended by the language of an instrument whose manifest purpose is to carve out of the same estate two or more separate and distinct interests-the one the right to the possession of which is to be enjoyed in præsenti and the others in futuro. Indeed, it is manifestly a much more simple task to formulate, as the law writers and the Legislature have done, a general distinction between vested and contingent future interests than to apply, in many instances, a distinction to concrete cases.

court, through Chipman, P. J., approves the definition of a vested remainder as it is given in 24 Am. & Eng. Ency, of Law (2d Ed.) p. 389, as follows: "The true criterion of a vested remainder is the existence in an ascertained person of a present fixed right of future enjoyment of the estate limited in remainder, which right will take effect in possession immediately on the determination of the precedent estate, irrespective of any collateral event, provided the estate in remain. der does not determine before the precedent estate." In Haward et al. v. Peavey, 128 Ill. 430, 21 N. E. 503, 15 Am. St. Rep. 120, the subject of remainders is thus spoken of: "A remainder is said to be vested when a present interest passes to a party, to be enjoyed in the future, so that the estate is invariably fixed in a determinate person after the particular estate terminates, while a contingent remainder is one limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event. 2 Blackstone's Commentaries, 168. But it does not necessarily follow that every estate in remainder which is subject to a contingency or condition is a contingent remainder. The condition may be precedent or subsequent. If the former, the remainder cannot vest until that which is contingent has happened, and thereby become certain. If the latter, the estate vests immediately, subject to be defeated by the happening of the condition"

*

*

[2, 3] The general definitions of vested and contingent remainders, as given by the law writers and our Code, are sufficiently clear and explicit, yet, after all, the real point of decision in all cases where the question is whether a future interest created by devise or otherwise is vested or contingent-citing cases. "It is," says Kent, 4 Comis as to the intention of the testator or grantor in that regard, and such intention, as before stated and as is obviously true, must, in cases where construction is necessary, be gathered from the language of the instrument viewed by the light of established and accepted canons of construction. Section 1317 et seq., Civil Code.

In the case at bar, however, we have, upon a careful scrutiny of the whole testament by the aid of the rules to which we have referred and the reflected light of the adjudicated cases, found much less difficulty in reaching a conclusion as to the intention of the testator with regard to the fourth clause of his will than a mere glance at the instrument seemed to indicate.

But, before proceeding to an examination of the instrument itself, we may, with propriety, state a few general rules which apply to inquiries of the nature of the one pre

mentaries, 202-206, "the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, that renders the remainder contingent." The foregoing formulas, as before stated, are, of course, clear and easy of apprehension, but the important and often the difficult question then arises whether a present fixed right of future enjoyment of the estate limited in remainder exists in "an ascertained person."

[5] While it will always seek to effectuate the wishes of the testator, "the law prefers to consider future estates as vested." Estate of Washburn, supra. As is said in Farnum v. Farnum, 53 Conn. 278, 2 Atl. 327; "That the courts will incline in doubtful cases to construe a devise or legacy as vested rather than contingent is a familiar and well-settled rule. In some instances courts seem to have gone so far as to say that they will if possible construe it as vested. It is

enough for our present purpose to say that we ought to give this will that construction if its language will fairly admit of it." After reviewing the decisions of the courts of many jurisdictions, 24 Am. & Eng. Ency. of Law (2d Ed.) p. 392, says: "The courts have always regarded contingent estates with disfavor, and from the earliest times have inclined towards that construction which holds a remainder vested rather than that which considers it contingent, when the question is doubtful. It has even been said that, if there is the least doubt, advantage is to be taken of the circumstance occasioning that doubt to hold that the remainder is vested, and not contingent." In Williams v. Williams, 73 Cal. 99, 14 Pac. 394, our Supreme Court says: "The law favors the vesting of interests, and every interest will be presumed to vest, unless a contrary intention is clearly manifested." And, lastly upon this proposition, section 1341 of our Civil Code provides that "testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death." We have discovered no language anywhere in the testament before us that is inconsistent with the view that by the devise to Marion De Vries the testator intended to create in the

former a vested future interest.

it uncertain whether therein and thereby the testator intended to create vested or contingent future interests, and there are no other circumstances arising from the testament itself to compel a contrary view, then the general language of the second clause of the testament to which we have referred becomes of signal and, indeed, controlling importance as an aid in the ascertainment of the intention of the testator with regard to the time of the vesting of the right of enjoyment of such future interests. But, apart from any consideration of the general language of the instrument, we think that, as before declared, from the language of the fourth clause itself, and through no strained or unnatural construction thereof, no serious difficulty need confront the court in reaching the conclusion that the intention of the testator as therein and thereby expressed was to create in his son, Marion, a vested remainder.

It will be observed that the fourth clause of the testament is divided into two paragraphs: The first involving the devise to Marion; the second, to the latter's wife. It will further be observed that the first paragraph uses words of present devise—that is, the language of the testator is: "I give and arise any question but that the testator inbequeath," etc. Thus far there could not tended by the use of those words the vestright. But, as we have seen, the contention ing in Marion De Vries a present fixed is that the language immediately preceding the quoted words, "Upon the termination of the life estate hereby created in my wife, Mary Jane De Vries," refers the vesting of the right to the time of the death of the life tenant or the termination by her death of the life estate, and that, therefore, the effect of said language is not only the postponement of the time of the actual enjoyment, but also of the time of the vesting of the right of enjoyment of the future inBut we think that terest thus created. where, as here, words of devise refer to the present or are in the present tense, the words, "upon the termination of the life estate" or "after" such termination, relate to the time of the possession or actual enjoyment of the interest so devised, and not to the time at which such interest shall vest or become in the donee a fixed right. It will not for a moment be questioned that words of present devise, such as are used here, are inconsistent with language which may be construed to postpone the immediate vesting of such right, and, as suggested, if the language immediately preceding the words of present devise in the fourth clause of the testament here may be held to be inconsist

It will first be noted that the second clause of the testament under present consideration reads: "I give, devise and be queath all the property of which I may die seised and possessed, both real and personal to my beloved wife, Mary Jane De Vries, for her natural life, the remainder thereof to my sons hereinafter named," etc. It is declared by the learned trial judges in their written opinion that, if the foregoing "were the only provision of the will relating to the disposition of the testator's property, the question would be free from doubt." It is, of course, to be conceded that, if the devises subsequently made by the testator are inconsistent with the language of the second clause of the testament just quoted, such devises must prevail. In other words, while the language of the second clause of the will clearly indicates an intention to create vested remainders over to the sons, yet, if the specific devises in remainder to the sons subsequently created out of the property from which the life estate is carved are made subject to such contingencies as to the right of enjoyment as to clearly disclose an intention to create contingent remainders, then the devises so made would, of course, control the general language of the second clause of the testament, and would therefore prevail. On the other hand, if we find no inconsistency between the general lan-ent with the present vesting of the interest, guage of the second clause and the language in which the specific devises are declared, or if the language by which the specific de

then at least a serious doubt arises as to what the testator actually intended should be the effect in legal contemplation of the

and interpreting the language quoted for the purpose of discovering whether it was the intention of the testator that the remainder so created should operate to vest the right or title to such future interest in the remainderman upon the former's death, the court says: "If the testator had said, '1 give, devise and bequeath unto the legatees named certain shares of stock, such bequests to take effect in enjoyment after the death of my life tenants,' there could be no question about the meaning or validity of the clause. We think it requires no particular straining to hold that when he said, 'after the death' of said life tenants, 'I give, devise and bequeath' unto the same persons, he meant the same thing, namely, a present, immediate bequest and gift of the property, subject only to delay in payment and enjoyment until after the death of those who had a prior right to the enjoyment as life tenants. The vesting of title was to take effect immediately; the actual division and delivery of the certificates of stock was to occur in the future."

In Farnam v. Farnam, 53 Conn. 261, 2 Atl. 325, 5 Atl. 682, a testamentary trust was created, by the terms of which certain sums were to be paid by the trustees annually to

the widow of the testator and to his children, and "at the decease of the last survivor of my said children, if my said wife shall not then be living, but if living, then upon her death, this trust shall cease; and I give, devise and bequeath all the estate which shall then be held in trust under this will to my grandchildren who shall then be living, to be equally divided among them per capita and not per stirpes, and to their heirs forever." It is then provided that if any grandchild of the testator shall have died, leaving a child or children surviving at the expiration of said trust, such child or children shall take the share that "his, her or their parent would have been entitled to if living," etc. The attack upon the testament was upon the ground that the fourth and fifth clauses (the latter the one just referred to) were inoperative for the reason that they were in violation of the Connecticut statute against perpetuities. The main question thereupon arising was whether the estate in the grandchildren was a vested or contingent remainder. The court held that the interest so created was a vested remainder, saying: "The words, 'I give, devise and bequeath' import a present interest unless other provisions in the will clearly manifest a different intention."

In the Matter of Seaman, 147 N. Y. 69, 41 N. E. 401, the sixth and seventh articles of the testament read as follows: "All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath to my executors, hereinafter named, in trust to apply and pay over the income of one equal undivided half part thereof to my said adopted daughter and niece, Elizabeth Seaman,

I give, devise and bequeath said equal undivided one-half part of my estate so held in trust for my said adopted daughter and niece to the children of my nephew, George A. Seaman, living at the time of her death, share and share alike. Seventh. I direct and order my said executors hereinafter named to apply and pay over the income of the other equal undivided half part of my estate so held in trust by them to my said adopted son and nephew, George A. Seaman, during his natural life, and upon his decease, I give, devise and bequeath the said equal undivided half of my estate, so held in trust for my said adopted son and nephew, to the children of my said nephew, George A. Seaman, living at the time of his death, share and share alike." The New York Court of Appeals held that the words, "I give, devise and bequeath," as thus used, were words of present gift and denoted a vested interest at the death of the testator, and, differentiating the case before it from other cases cited, among other things said: "Here there are words of present gift, for the phrase 'upon her decease,' like the expression 'from and after,' does not prevent the legacy from vesting"-citing Nelson v. Russell, 135 N. Y. 137, 31 N. E. 1008.

"In applying the rule which favors the construction of remainders as vested," it is said, in the second edition of 24 Am. & Eng. Ency. of Law, p. 395, "a distinction has been made between certain words as importing time and contingency respectively. Accordingly, the adverbs, 'when,' 'then,' 'after,' until,' 'from,' etc., in a devise of a remainder after a precedent estate determinable on an event which must necessarily happen, are construed to relate merely to the time of the enjoyment of the estate, and not to the time of the vesting in interest. Words denoting contingency, on the other hand, are ‘if,' 'in the event,' and the like." See Matter of Watts, 68 App. Div. 357, 74 N. Y. Supp. 75; Hersee v. Simpson, 154 N. Y. 496, 48 N. E. 890; McArthur v. Scott, 113 U. S. 380, 5 Sup. Ct. 652, 28 L. Ed. 1015; Cropley v. Cooper, 19 Wall. 167, 22 L. Ed. 109-in each of which the rule of construction contended for by appellant here is applied. See, also, Estate of Cavarly, 119 Cal. 406, 51 Pac. 629; Dunn V. Schell, 122 Cal. 627, 55 Pac. 595; Estate of Fair, 132 Cal. 546, 60 Pac. 442, 64 Pac. 1000, 84 Am. St. Rep. 70; Estate of Campbell, 149 Cal. 717, 87 Pac. 573.

But, as we have seen, the conclusion of the court below, it is argued, is supported by the construction which respondent places upon the language of the second paragraph of the fourth clause, wherein and whereby the testator, for the benefit of the wife of Marion, guards against a contingency that might happen before the vesting in Marion of the interest devised to him. We are unable to see wherein said second paragraph or the contingent provision therein made for Marion's