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such death of my son M. occur before the prop- a petition for a decree of partial distribuerty herein devised and bequeathed to him vests tion, Marion De Vries appeals. Reversed. in him, then, all the interests herein devised and bequeathed to said M. shall pass to and vest Marion De Vries, in pro. per. Nutter & in' his wife absolutely. Other provisions show- Orr, for respondent. ed that testator clearly understood the legal sigpificance of words of present devise unqualified by other language. Civ. Code, 8 694, 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 of the estate of William H. De Vries, deceaswhom or the event upon which it is limited to ed, is whether the remainder to said appeltake effect remains uncertain; and section 1341 lant, provided for by the fourth clause of provides that devises and bequests are presumed to vest at testator's death. Held, that son M. the last will and testament of said deceased, took a vested remainder in the estate devised is vested or contingent. The court below, to him immediately upon testator's death. two of the judges thereof presiding at the
[Ed. Note.-For other cases, see Wills, Cent. hearing and concurring in the conclusion Dig. 88 1488–1510; Dec. Dig. § 634.*] For other definitions, see Words and Phrases, vised to the appellant, Marion De Vries, to
therein reached, held the remainder so de vol. 2, p. 1498; vol. 8, pp. 7302-7309, 7827.] 2. WILLS ($ 634*)—ESTATE DEVISED-VESTED be contingent. The decision of the question REMAINDER.
presented here must obviously rest on the inThe intention of testator should control in tention of the testator, and, in turn, such indetermining whether a future interest devised tention must be gathered from an interis vested or contingent.
[Ed. Note.-For other cases, see Wills, Dec. pretation of the language of the last will Dig. $ 634.*]
and testament of the testator. 3. WILLS (8 634*) - CONSTRUCTION - ESTATE
The language of said testament particularDEVISED-VESTED REMAINDER.
ly pertinent to this inquiry reads: In view of Civ. Code, & 1317, and the fol- "Second. I give, devise and bequeath all lowing sections, relating to the interpretation of the property of which I may die seised and wills, in determining whether a future interest is vested or contingent, testator's intention possessed, both real and personal, to my be thereon must be gathered from the language of loved wife, Mary Jane De Vries, for her the will construed in view of established rules natural life, the remainder thereof to my of construction. (Ed. Note.-For other cases, see Wills, Cent.
sons hereinafter named in proportions for Dig. 88 1488–1510; Dec. Dig. $ 634.*]
the time and upon the conditions hereinafter 4. WILLS (8 634*)–ESTATE DEVISED-VESTED expressed: REMAINDER.
“Fourth. Upon the termination of the life The test of whether a future estate devised estate hereby created in my wifė, Mary Jane is vested is whether there exists in an ascer De Vries, I give and devise unto my son, tained person a present fixed right of future enjoyment of the estate limited, which will take Marion De Vries, all those certain lots, piec effect in possession immediately on the deter- es and parcels of land, situate. mination of the precedent estate, irrespective of
"If my son, Marion De Vries, should preany collateral event. [Ed. Note. For other cases, see Wills, Cent. and leave him no lawful issue surviving, and
cede in death his wife, Minnie L. De Vries, Dig. $$ 1488–1510; Dec. Dig. $ 634.*] 5. Wills ($629*) — CONSTRUCTION VESTED
should such death of my son, Marion De INTERESTS.
Vries, occur before the property herein deWhile testator's wishes will be effectuated, vised and bequeathed to him rests in him. if possible, the law prefers to consider future then, all the interests herein and hereby deestates as vested rather than contingent.
[Ed. Note.- For other cases, see Wills, Cent. vised and bequeathed to said Marion De Dig. 88 1461, 1462; Dec. Dig. 8 629.*]
Vries shall pass to and vest in and become 6. Wills (8 629*)-ESTATE DEVISED-VESTED the property of said Minnie L. De Vries, my INTEREST
son, Marion's wife, absolutely and forever.” The use of words of present gift in a will The contention of the appellant is that, unis construed as creating a vested interest, in the der the terms of said will, that portion of absence of other controlling circumstances.
[Ed. Note.-For other cases, see Wills, Dec. the estate so devised to him vested in him, Dig. $ 629.*]
by virtue of the provisions of section 694 of 7. WILLS (8 634*)-ESTATE DEVISED--VESTED the Civil Code, immediately upon the death REMAINDER.
of the testator. Reproduced in the transcript A provision that "upon the termination of on appeal is the written opinion of the learnsaid life estate I give, devise and bequeath all ed trial judges, in which they set forth their those certain lots, the absence of other provision or conditions, reasons for the conclusion reached by them gave such son a vested remainder in the lots. adversely to the contention of appellant, and
[Ed. Note.-For other cases, see Wills, Cent. from said opinion we gather that their posiDig. $$ 1488–1510; Dec. Dig. $ 634.*]
tion is planted principally on their interpreAppeal from Superior Court, San Joaquin tation of the language of the clause of the County; Frank H. Smith, Judge.
testament devising to appellant out of the In the matter of the estate of William H. life estate a certain interest in remainder. De Vries, deceased. From an order denying | The argument appears to be that the words,
“['pon 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 of the intermediate or precedent interest," to vest not only in interest but also in pos- and, continues the same Code, "a future insession" as at the termination of the life es- terest is contingent, whilst the person in tate. In other words, it is held by the court whom, or the event upon which, it is limbelow that by use of the words "upon the ited to take effect remains uncertain." Sectermination of the life estate" the testator tion 695. intended to say that the interest in remain-  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 es-court, through Chipman, P. J., approves the tate, and this construction of the testament, definition of a vested remainder as it is givin so far as it affects the devise to the said en in 24 Am. & Enģ. Ency. of Law (2d Ed.) Marion, is sustained, so the reasoning pro- p. 389, as follows: "The true criterion of a ceeds, by the provision for the wife of said vested remainder is the existence in an asMarion in the event that the latter should certained person of present fixed right of precede in death the former, leaving "him no future enjoyment of the estate limited in relawful issue surviving."
mainder, which right will take effect in pos We are unable to assent to the con- session immediately on the determination of struction thus given the instrument in ques- the precedent estate, irrespective of any coltion and the conclusion arrived at by the lateral event, provided the estate in remain. court below therefrom.
der does not determine before the precedent It is, of course, to be conceded that great estate." In Haward et al. v. Peavey, 128 Ill. difficulty often arises in determining wheth-430, 21 N. E. 503, 15 Am. St. Rep. 120, the er a vested or contingent remainder was in- subject of remainders is thus spoken of: “A tended by the language of an instrument remainder is said to be vested when a preswhose manifest purpose is to carve out of ent interest passes to a party, to be enjoyed the same estate two or more separate and in the future, so that the estate is invariadistinct interests—the one the right to the bly fixed in a determinate person after the possession of which is to be enjoyed in præ- particular estate terminates, while a continsenti and the others in futuro. Indeed, it gent remainder is one limited to take effect, is manifestly a much more simple task to either to a dubious and uncertain person, or formulate, as the law writers and the Legis- upon a dubious and uncertain event. 2 Blacklature have done, a general distinction be- stone's Commentaries, 168.
But it tween vested and contingent future inter- does not necessarily follow that every estate ests than to apply, in many instances, a dis- in remainder which is subject to a contingentinction to concrete cases.
cy or condition is a contingent remainder. The [2, 3] The general definitions of vested condition may be precedent or subsequent. and contingent remainders, as given by the If the former, the remainder cannot vest unlaw writers and our Code, are sufficiently til that which is contingent has happened, clear and explicit, yet, after all, the real and thereby become certain. If the latter, point of decision in all cases where the ques- the estate vests immediately, subject to be tion is whether a future interest created by defeated by the happening of the condition" devise or otherwise is vested or contingent -citing cases. "It is," says Kent, 4 Comis as to the intention of the testator or gran- mentaries, 202–206, "the uncertainty of the tor in that regard, and such intention, as be- right of enjoyment, and not the uncertainty fore stated and as is obviously true, must, of its actual enjoyment, that renders the rein cases where construction is necessary, be mainder contingent.” The foregoing formugathered from the language of the instru- las, as before stated, are, of course, clear and ment viewed by the light of established and easy of apprehension, but the important and accepted canons of construction. Section often the difficult question then arises wheth1317 et seq., Civil Code.
er a present fixed right of future enjoyment In the case at bar, however, we have, of the estate limited in remainder exists in upon a careful scrutiny of the whole testa- "an ascertained person." ment by the aid of the rules to which we  While it will always seek to effectuhave referred and the reflected light of the ate the wishes of the testator, “the law preadjudicated cases, found much less difficulty fers to consider future estates as vested.” in reaching a conclusion as to the intention Estate of Washburn, supra. As is said in of the testator with regard to the fourth Farnum v. Farnum, 53 Conn. 278, 2 Atl. 327; clause of his will than a mere glance at the "That the courts will incline in doubtful instrument seemed to indicate.
cases to construe a devise or legacy as vestBut, before proceeding to an examinationed rather than contingent is a familiar and of the instrument itself, we may, with pro- well-settled rule. In some instances courts priety, state a few general rules which ap- seem to have gone so far as to say that they ply to inquiries of the nature of the one pre- I will if possible construe it as vested. It is enough for our present purpose to say that it uncertain whether therein and thereby the we ought to give this will that construction testator intended to create vested or continif its language will fairly admit of it.” Aft- gent future interests, and there are no other reviewing the decisions of the courts of er circumstances arising from the testamany jurisdictions, 24 Am. & Eng. Ency. or ment itself to compel a contrary view, then Law (20 Ed.) p. 392, says: “The courts have the general language of the second clause of always regarded contingent estates with the testament to which we have referred be disfavor, and from the earliest times have comes of signal and, indeed, controlling iminclined towards that construction which portance as an aid in the ascertainment of holds a remainder vested rather than that the intention of the testator with regard to which considers it contingent, when the the time of the vesting of the right of enjoy. question is doubtful. It has even been said ment of such future Interests. But, apart that, if there is the least doubt, advantage from any consideration of the general lanis to be taken of the circumstance occasion-guage of the instrument, we think that, as ing that doubt to hold that the remainder is before declared, from the language of the vested, and not contingent.” In Williams v. fourth clause itself, and through no strained Williams, 73 Cal. 99, 14 Pac. 394, our Su- or unnatural construction thereof, no serious preme Court says: “The law favors the vest difficulty need confront the court in reaching ing of interests, and every interest will be the conclusion that the intention of the testa. presumed to vest, unless a contrary inten- tor as therein and thereby expressed was to tion is clearly manifested.” And, lastly create in his son, Marion, a vested remainder. upon this proposition, section 1341 of our Civil Code provides that “testamentary dis- of the testament is divided into two para
It will be observed that the fourth clause positions, including devises and bequests to graphs: The first involving the devise to a person on attaining majority, are presum- Marion; the second, to the latter's wife. It ed to vest at the testator's death.”. We have will further be observed that the first paradiscovered no language anywhere in the tes graph uses words of present devise--that is, tament before us that is inconsistent with the view that by the devise to Marion De the language of the testator is: “I give and Vries the testator intended to create in the bequeath,” etc. Thus far there could not former a vested future interest.
arise any question but that the testator inIt will first be noted that the second tended by the use of those words the vestclause of the testament under present con- ing in Marion De Vries a present fixed sideration reads: "I give, devise and be right. But, as we have seen, the contention queath all the property of which I may die the quoted words, “Upon the termination of
is that the language immediately preceding seised and possessed, both real and personal to my beloved wife, Mary Jane De Vries, the life estate hereby created in my wife, for her natural life, the remainder thereof Mary Jane De Vries,” refers the vesting of to my sons hereinafter named," etc. It is the right to the time of the death of the life declared by the learned trial judges in their tenant or the termination by her death of written opinion that, if the foregoing "were the life estate, and that, therefore, the effect the only provision of the will relating to of said language is not only the postponethe disposition of the ' testator's property, ment of the time of the actual enjoyment, the question would be free from doubt." but also of the time of the vesting of It is, of course, to be conceded that, if the the right of enjoyment of the future indevises subsequently made by the testator terest thus created. But we think that are inconsistent with the language of the where, as here, words of devise refer to the second clause of the testament just quoted, present or are in the present tense, the such devises must prevail. In other words, words, "upon the termination of the life while the language of the second clause of estate" or "after" such termination, relate the will clearly indicates an intention to to the time of the possession or actual encreate vested remainders over to the sons, joyment of the interest so devised, and not yet, if the specific devises in remainder to the to the time at which such interest shall vest sons subsequently created out of the prop- or become in the donee a fixed right. It will erty from which the life estate is carved not for a moment be questioned that words are made subject to such contingencies as to of present devise, such as are used here, are the right of enjoyment as to clearly disclose inconsistent with language which may be an intention to create contingent remainders, construed to postpone the immediate vesting then the devises so made would, of course, of such right, and, as suggested, if the lancontrol the general language of the second guage immediately preceding the words of clause of the testament, and would there- present devise in the fourth clause of the fore prevail. On the other hand, if we find testament here may be held to be inconsistno inconsistency between the general lan- ent with the present vesting of the interest, guage of the second clause and the language then at least a serious doubt arises as to in which the specific devises are declared, what the testator actually intended should or if the language by which the specific de- be the effect in legal contemplation of the may hold that the words of present devise, ing the findings of the referee, the surroas employed by the testator themselves ir- gate court said: "His (the referee's) decision resistibly import an intention to create a is principally based upon the circumstance vested remainder, or the language of the that the testator directed the conversion of fourth clause, as a whole, is so uncertain the real estate at a future time and the and ambiguous as to leave in serious doubt payment of the legacy from the proceeds." what the testator's specific intention in that the surrogate then refers to a number of respect was, in either case, under the uni- cases by the light of which the referee conformly accepted rules of construction, the strued the testament, and proceeds: “The conclusion must be the same. But manifest- rule declaring that, where the gift consists ly, if the construction contended for by the only in a direction to divide or pay at a furespondent and sustained by the court below ture time, the vesting as well as the time be sound, the language, “I devise and be- of payment is postponed, which is referred queath," or "give and devise,” is controlled to in the cases above cited, and which doubtentirely by the words immediately preced- less acquires greater pertinency and signifiing it. We can perceive no reason for such cance from the direction for conversion conconstruction, and, indeed, we are of the tained in the wills considered in some of opinion, as before declared, that, when we them, has been repeatedly stated to be not consider the language of the clause in ques- an inflexible or arbitrary rule, but one readtion in connection with other parts of the ily yielding to the intention of the testatestament or with what appears clearly tor, and sometimes evidence of a very enough to us to be the general scheme of slight character has been resorted to by the the testator, such construction would fall courts, and taken as expressive or indicafar short of discovering the intention of the tive of such intention. [Citing cases.] Aldeceased with respect to the devise to Ma- most invariably accompanying the declararion. But we are not without eminently tion of the rule mentioned is found the respectable authority for the foregoing statement of another rule or principle simviews.
ilarly formulated for the purpose of aiding  The general rule as to the employment in discovering the intention of the testator, of words of present gift or devise, in imme- and that is that where there is a direct or diate connection with the use of the prep- immediate gift, the subject of which cannot ositions "upon," "after," and "at,” expres- come into possession or enjoyment of the sive of the time at which the intermediate legatee until some future time, the gift is, estate must terminate, in instruments dis- nevertheless, to be regarded as indefeasibly posing of property, is laid down by 30 Am. vested. This latter rule seems to me to & Eng. Ency. of Law (20 Ed.) p. 768, as fol- more fitly accord with the intention of the lows: “The use of words of present gift, or testator in the present case, and I think it language which has the same import or ef- should control its disposition. Words of fect, is expressly recognized as operating, in present gift are here clearly used. The testhe absence of other controlling circum- tator says: 'I do hereby give and bequeath.' stances, to create a vested interest in the The use of such language, or language of beneficiary.” Many cases may be found the same import, or effect, is expressly or where that rule has been applied to a.state impliedly recognized by the authorities as of facts strikingly similar to the circum- effective, in the absence of other controlling stances of the present case. We shall here circumstances, to create a vested interest or notice a few of those cases.
estate in the beneficiary." Citing Matter of In the Matter of Elliott, 27 Misc. Rep. 258, Young, 145 N. Y. 535, 40 N. E. 226; Delaney 58 N. Y. Supp. 603, the testator gave to his v. McCormack, 88 N. Y. 174; Smith v. Edwidow, during her life or until remarriage, wards, 88 N. Y. 92; Shipman v. Rollins, 98 his real and his residuary personal estate. N. Y. 311; Goebel v. Wolf, 113 N. Y. 405, Upon her death or remarriage the executors 21 N. E. 388, 10 Am. St. Rep. 464; Matter were directed by a codicil to sell and convey of Baer, 147 N. Y. 354, 41 N. E. 702; Delathe realty, convert the personalty into mon- feld v. Shipman, 103 N. Y. 468, 9 N. E. 184; ey, and out of the proceeds pay a son $1,500 Miller v. Gilbert, 144 N. Y. 68, 38 N. E. 979; and to one Alphrona Town, $800, "which Ross v. Roberts, 2 Hun (N. Y.) 90; affirmed, said amounts," so the testament read, "I do 63 N. Y. 652; Matter of Mahan, 98 N. Y. hereby give and bequeath unto them to be 372; Geisse v. Bunce, 23 App. Div. 292, 48 paid only as aforesaid.” Alphrona Town N. Y. Supp. 249; Warner v. Durant, 76 N. died during the lifetime of the widow. The Y. 136; Loder v. Hatfield, 71 N. Y. 99; contention was that the bequest to Alphrona Wells v. Seeley, 47 Hun (N. Y.) 109; Matter Town lapsed by reason of her death during of Gardner, 140 N. Y. 122, 35 N. E. 439. the lifetime of the testator's widow. The In the Matter of Conger, 81 App. Div. referee sustained that contention, holding | 493, 80 N. Y. Supp. 933, the will giving a that said bequest was contingent, and that it life interest to the testator's wife and daughcould only become vested or effective by the ter provided that, "after the death of my legatee's surviving the happening of the said wife and daughter, I give, devise and death or remarriage of the widow. Revers- bequeath unto," etc. Construing said will
and interpreting the language quoted for the I give, devise and bequeath said equal undipurpose of discovering whether it was the vided one-half part of my estate so held in intention of the testator that the remainder trust for my said adopted daughter and niece so created should operate to vest the right to the children of my nephew, George A. or title to such future interest in the re-Seaman, living at the time of her death, mainderman upon the former's death, the share and share alike. Seventh. I direct and court says: "If the testator had said, 'I order my said executors hereinafter named give, devise and bequeath unto the legatees to apply and pay over the income of the named certain shares of stock, such bequests other equal undivided half part of my esto take effect in enjoyment after the death tate so held in trust by them to my said of my life tenants,' there could be no ques- adopted son and nephew, George A. Seaman, tion about the meaning or validity of the during his natural life, and upon his decease, clause. We think it requires no particular I give, devise and bequeath the said equal straining to hold that when he said, “after undivided half of my estate, so held in trust the death of said life tenants, 'I give, devise for my said adopted son and nephew, to the and bequeath' unto the same persons, he children of my said nephew, George A. Seameant the same thing, namely, a present, man, living at the time of his death, share immediate bequest and gift of the property, and share alike.” The New York Court of subject only to delay in payment and en- Appeals held that the words, “I give, devise joyment until after the death of those who and bequeath," as thus used, were words of had a prior right to the enjoyment as life present gift and denoted a vested interest at tenants. The vesting of title was to take ef- the death of the testator, and, differentiating fect immediately; the actual division and the case before it from other cases cited, delivery of the certificates of stock was to among other things said: “Here there are occur in the future.”
words of present gift, for the phrase 'upon In Farnam v. Farnam, 53 Conn. 261, 2 Atl. her decease,' like the expression 'from and 325, 5 Atl. 682, a testamentary trust was after,' does not prevent the legacy from vestcreated, by the terms of which certain sums ing"-citing Nelson v. Russell, 135 N. Y. 137, were to be paid by the trustees annually to 31 N. E. 1008. the widow of the testator and to his chil
"In applying the rule which favors the dren, and “at the decease of the last survivor construction of remainders as vested,” it is of my said children, if my said wife shall said, in the second edition of 24 Am. & Eng. not then be living, but if living, then upon Ency. of Law, p. 395, “a distinction has been her death, this trust shall cease; and I give, made between certain words as importing devise and bequeath all the estate which time and contingency respectively. Accordshall then be held in trust under this will to ingly, the adverbs, 'when,' 'then,' 'after, my grandchildren who shall then be living, to 'until,' 'from,' etc., in a devise of a remainbe equally divided among them per capita and der after a precedent estate determinable on not per stirpes, and to their heirs forever." an event which must necessarily happen, are It is then provided that if any grandchild of construed to relate merely to the time of the the testator shall have died, leaving a child enjoyment of the estate, and not to the time or children surviving at the expiration of of the vesting in interest. Words denoting said trust, such child or children shall take contingency, on the other hand, are 'if,' 'in the share that "his, her or their parent would the event,' and the like.” See Matter of have been entitled to if living," etc. The at- Watts, 68 App. Div. 357, 74 N. Y. Supp. 75; tack upon the testament was upon the ground Hersee v. Simpson, 154 N. Y. 496, 48 N. E. that the fourth and fifth clauses (the latter 890; McArthur v. Scott, 113 U. S. 380, 5 Sup. the one just referred to) were inoperative Ct. 652, 28 L. Ed. 1015; Cropley v. Cooper, for the reason that they were in violation of 19 Wall. 167, 22 L. Ed. 109—in each of which the Connecticut statute against perpetuities. the rule of construction contended for by The main question thereupon arising was appellant here is applied. See, also, Estate whether the estate in the grandchildren was of Cavarly, 119 Cal. 406, 51 Pac. 629; Dunn a vested or contingent remainder. The court v. Schell, 122 Cal. 627, 55 Pac. 595; Estate held that the interest so created was a vest- of Fair, 132 Cal. 546, 60 Pac. 442, 64 Pac. ed remainder, saying: "The words, 'I give, 1000, 84 Am. St. Rep. 70; Estate of Campdevise and bequeath' import a present inter- bell, 149 Cal. 717, 87 Pac. 573. est unless other provisions in the will clear- But, as we have seen, the conclusion of ly manifest a different intention."
the court below, it is argued, is supported by In the Matter of Seaman, 147 N. Y. 69, the construction which respondent places up41 N. E. 401, the sixth and seventh articles on the language of the second paragraph of of the testament read as follows: "All the the fourth clause, wherein and whereby the rest, residue and remainder of my estate, real testator, for the benefit of the wife of Marion, and personal, I give, devise and bequeath to guards against a contingency that might hapmy executors, hereinafter named, in trust to pen before the vesting in Marion of the inapply and pay over the income of one equal terest devised to him. We are unable to see undivided half part thereof to my said adopt- wherein said second paragraph or the coned daughter and niece, Elizabeth Seaman, tingent provision therein made for Marion's