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December 7, 1948

GARNETT et al.

The opinion of the court was delivered by: HOLTZOFF

This is an action for the construction of the will of Alice Evelyn Garnett, who died on February 28, 1922, a resident of Arkansas. Her will was admitted to probate in that State. The instrument, among other things, disposes of real property located in the District of Columbia. These provisions are involved in this proceeding.

In respect to the real property, the testatrix created a life estate for her three children and their survivors. The life estate terminated by the death of the last surviving child on December 23, 1946. The question presented for determination is who is entitled to the fee simple upon the death of the last of the life tenants.

 The testatrix devised all of her real property located within the District of Columbia to the American Security and Trust Company in trust to divide the net income arising therefrom equally among her children -- William H. Garnett, Evelyn Sidney Garnett, and Rita Boykin -- so long as they or any of them should live. The following provision then follows in paragraph 6, which is to be construed in this proceeding: 'Upon the death of all of my children, I give, devise and bequeath all of my trust, estate, in fee simple and free of this trust, to my grandchildren, or their descendants that shall then be living, my said grandchildren, or their descendants to take per stirpes and not per capita, or in other words, to inherit the portion of my estate that would pass to their parents if I had died intestate.'

 Of the three children, William H. Garnett died on March 21, 1938, without issue, and Evelyn Sidney Garnett died on January 21, 1943, also without issue. The third, Rita Boykin, died on December 23, 1946. She had one child -- Aubrey -- who predeceased her, the date of his death being September 23, 1922. Thus, Aubrey Boykin, the son of Rita Boykin, died after the death of the testatrix, but during the life of his mother and, therefore, during the existence of the life estate. He had no issue. At the time of her death, Rita Boykin was in receipt of the entire net income of the trust estate as the survivor of the three children of the testatrix. The question who is entitled to the corpus upon her death, in turn, depends, first, on the nature of the interest taken by Aubrey Boykin under his grandmother's will. It will be observed that under paragraph 6 of the will, upon the death of all the children, the corpus passed to the grandchildren in fee simple, or their descendants that should then be living. Aubrey Boykin was the only grandchild of the testatrix. The first and basic problem to be solved is whether he received a vested or a contingent remainder.

 It is contended by some of the defendants that Aubrey took a vested remainder and that, therefore, they derive title through him. Other defendants claim that Aubrey Boykin took a contingent remainder and that, therefore, his interest was extinguished at his death. They variously argue that upon Rita Boykin's death an intestacy resulted; that there was a possibility of reverter on the theory that Aubrey Boykin had a defeasible fee; and that a resulting trust arose in favor of Rita Boykin's heirs, or in favor of the heirs of the testatrix. The different points of view were ably and eloquently presented by counsel in oral argument and briefs, in a manner that was exceedingly helpful to the court.

 In construing a will, there are certain general and fundamental principles that must be borne in mind. First, the courts endeavor to effectuate the intention of the testator, insofar as it can be ascertained from the text of the instrument, the surrounding circumstances, and the situation of the family. Second, the law favors early vesting of estates and in case of doubt construes words in futuro as postponing the possession and enjoyment rather than the vesting of a future interest. Third, if at all possible, a will should be so interpreted as to avoid an intestacy.

 Testamentary dispositions similar to that encountered in this case are frequently found. Courts have often construed provisions creating a life estate, with a remainder to children or grandchildren, as the case may be, and if they be dead, then to their issue or their descendants.

 In Doe v. Considine, 6 Wall. 458, 472, 473, 18 L. Ed. 869, the will created a life estate with a remainder to the child or children of the testator's son, John M. Barr; but should John die without leaving issue, then the remainder was to pass to the testator's sons-in-law. The Court concluded that children of John M. Barr living at the time of the testator's death took a vested remainder, subject to open and let in the participation of after-born children and liable to be divested by their dying before the life tenant, but not liable to be defeated by any other event. It was further held that the devise over to the sons-in-law was a contingent remainder. The Supreme Court formulated the following definition of vested and contingent remainders 6 pate 474, 18 L. Ed. 869:

 'A vested remainder is where a present interest passes to a certain and definite person, but to be enjoyed in futuro. There must be a particular estate to support it. The remainder must pass out of the grantor at the creation of the particular estate. It must best in the grantee during the continuance of the estate, or eo instanti that it determines.

 'A contingent remainder is where the estate in remainder is limited either to a dubious and uncertain person, or upon the happening of a dubious and uncertain event.'

 The definition found in the District of Columbia Code is couched in different phraseology, but a close analysis will indicate that it reaches substantially the same result. D.C. Code 1949, Sec. 45 -- 812, which deals with this matter, reads as follows: 'A future estate is vested when there is a person in being who would have an immediate right to the possession of the land upon the expiration of the intermediate or precedent estate, or upon the arrival of a certain period or event when it is to commence in possession. It is contingent when the person to whom or the event upon which it is limited to take effect in possession or become a vested estate is uncertain.'

 In McArthur v. Scott, 113 U.S. 340, 344, 377 et seq., 5 S. Ct. 652, 28 L. Ed. 1015, the testator created a life estate for the benefit of his children, remainder to the grandchildren per capita, but if any grandchild shall have died before the final division, leaving a child or children, such child or children were to receive their parent's share per stirpes. The Court called attention to the fact that sound policy and practical convenience required that titles should be vested at the earliest period. It reached the conclusion that each grandchild took a vested remainder subject to open and let in after-born grandchildren. The only effect of the gift over to the children of a deceased grandchild was not to define the nature of the gift to the grandchildren, but merely to divest the share of any grandchild who died leaving issue.

 In O'Neill v. District of Columbia, 77 U.S.App.D.C. 79, 132 F.2d 601, the court construed a will that created a life estate for the benefit of the testator's widow. On her death the property was to pass to the testator's two daughters, share and share alike, or the survivor, unless the deceased daughter left issue surviving, in which event the surviving issue were to take their mother's share. The court held that each of the daughters took a vested remainder.

 In Pyne v. Pyne, 81 U.S.App.D.C. 11, 154 F.2d 297, this subject was considered at length. In that case the testatrix devised her property to one of her daughters for life, and upon her death to her three other children and the issue of the deceased daughter, if any. If the daughter died without issue, then her share was to pass to the other three children, share and share alike. In case any of the other children died leaving a descendant or descendants, the descendant or descendants were to take their parent's share. After thorough consideration, the court reached the conclusion that each of ...

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