The opinion of the court was delivered by: HOLTZOFF
This is a petition by the substituted trustee under the will of James H. Saville, who died on December 4, 1912, for a construction of the will and for directions as to the distribution of the estate.
Each of three living grandchildren of the deceased -- Susan L. Cockrell, Fulton Lewis, Jr., and Mildred Lewis -- claims to be entitled to one-third of the corpus at this time as remainderman. On the other hand, Elizabeth Borman, a grand-niece of the deceased, claims the entire corpus.
The will of the deceased, after making some specific bequests, contains the following provisions, which are pertinent to this proceeding:
'Third: All the rest, residue and remainder of my estate * * * I give and bequeath unto my wife, Susan Saville, for and during her natural life, * * * .
'Fourth: Upon the death of my wife, I will and direct that my estate shall vest in my son-in-law, Fulton Lewis, Esq., as Trustee, and the income thereof, after paying the annuities to my sisters, should they still remain a charge upon my estate, shall be equally divided between my two daughters, for each of their sole and separate use and benefit, and in the event of the death of their respective child or children, the descendants of each child, to take the share of the parents should he or she be dead.
'Fifth: In event of the death of either of my said daughters leaving no child or descendant surviving, the income shall be paid to the survivor, and in event of the death of both daughters without descendants surviving, then the income to be paid to my sisters in equal shares, or all to the survivor, and upon the death of both of my sisters, then the whole of my estate shall vest in my grand-niece, Elizabeth Borman, daughter of my nephew, Sidney Borman, and her lawful descendants per stirpes, and should she be dead leaving no lawful descendants, then to Maud Virginia Houston, the daughter-in-law of my wife, and her lawful descendants per stirpes.'
It will be observed that by paragraph Third the testator's wife, Susan Saville, received a life estate in the entire residue. She died in 1922. Each of the two daughters of the deceased -- Catherine Saville and Elizabeth Lewis -- then became the beneficiary of one-half of the income for life. Catherine died without issue in 1933, and thereupon Elizabeth Lewis became entitled to the entire income for the balance of her life. Elizabeth Lewis died in March 1948, leaving three children, i.e., grandchildren of the testator. They are the defendants, Susan Cockrell, Fulton Lewis, Jr., and Millard Lewis. Each of them claims one-third of the corpus in fee simple under the last clause of paragraph Fourth of the will. On the other hand, the grand-niece, Elizabeth Borman, contends that the last clause of paragraph Fourth of the will is invalid as in violation of the Rule against Perpetuities, and that, therefore, she is entitled to the entire corpus under Paragraph Fifth of the will.
It seems desirable to consider first the nature of the interest created by paragraph Fifth of the will for the grand-niece Elizabeth Borman. This paragraph commences with a provisions that in the event of the death of either of the testator's daughters, leaving no child or descendant, the income shall be paid to the survivor. Accordingly, upon the death of her sister, Catherine Saville, without issue, in 1933, Elizabeth became entitled to the entire income. Paragraph Fifth continues with a clause that in the event of the death of both daughters without descendants surviving, certain persons shall take under specified circumstances: first, the sisters of the testator; and then the grand-niece, Elizabeth Borman. It is clear, however, that neither the provision for the sisters, nor the provision for the grand-niece was to become operative except in the event of the death of both daughters without descendants. This contingency was a condition precedent to the right of the grand-niece to take under the will. The condition has not been fulfilled, since one of the daughters, i.e., Elizabeth Lewis, died leaving issue.
The interest devised and bequeathed to the grand-niece, Elizabeth Borman, is a remainder, since it is to follow a life estate. It is a contingent remainder, since it is to become effective upon the occurrence of a contingency or a condition precedent, in addition to the termination of the preceding estate. A contingent remainder does not vest unless the contingency on which it is founded actually occurs. In this case the contingency did not arise, since both daughters did not die without descendants.
The foregoing reasoning is fully sustained by the authorities. Thus, Fearne in his classic work on Contingent Remainders states (p. 3):
'A contingent remainder is a remainder limited so as to depend on an event or condition, which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding estate; -- For if the preceding estate (unless it be a mere trust estate) determine before such an event or condition happens, the remainder will never take effect; * * * '
Blackstone, Book Ii, Ch. 11 (pp. 169, 170) enunciated the following principles:
'Contingent or executory remainders (whereby no present interest passes) are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event; so that the particular estate may chance to be determined, and the remainder never take effect.
'A remainder may also be contingent, where the person to whom it is limited is fixed and certain, but the event upon which it is to take effect is vague and uncertain. As, where land is given to A for life, and in case B survives him, then with the remainder to B in fee; here B is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his surviving A. During the joint lives of A and B it is contingent. and if B ...