deemed vested, subject of course, to being divested if the contingency on which a gift over is to take effect actually occurs.
The leading case on this point is Cropley v. Cooper, 19 Wall. 167, 174-175, 22 L. Ed. 109, where the applicable principles were summarized as follows:
'A bequest in the form of a direction to pay at a future period vests in interest immediately if the payment be postponed for the convenience of the estate or to let in some other interest.
'A devise of lands to be sold after the termination of a life estate given by the will, the proceeds to be distributed thereafter to certain persons, is a bequest to those persons and vests at the death of the testator.'
In Johnson v. Washington Loan & Trust Co., 33 App.D.C. 242, there was a devise of the testator's homestead to the testator's daughters, and to the survivor and survivors of them, so long as they should remain single and unmarried. The will then contained the following provision: ' * * * on the death or marriage of the last of them then I direct that the said estate shall be sold by my executors and the proceeds thereof be distributed by my said executors among my daughters living at my death and their children and descendants (per stirpes) * * * .' The Court of Appeals held that each of the daughters who were living at the testator's death took a vested interest in the homestead to come into possession and enjoyment upon the termination of the life estate of the wife and upon the death of the last surviving daughter unmarried. Chief Justice Shepard made the following observations, 33 App.D.C. at p. 256: 'We do not find in the words of the testator such a clear and certain expression of his intention as to enable us to determine between the several contentions of the parties, before stated, without the aid of certain established rules of construction applicable in case of uncertainty. These are: 1. The law will not construe a remainder to be contingent when it can be taken to be vested. 2. Estates shall be held to vest at the earliest possible period, unless there is a clear manifestation of the intention of the testator to the contrary. 3. Adverts of time, as 'where', 'there', 'after', 'from', etc., in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not the time of vesting in interest.'
The decree of the Court of Appeals was affirmed by the Supreme Court, 224 U.S. 224, 238, 32 S. Ct. 421, 423, 56 L. Ed. 741. In an opinion written by Mr. Justice Hughes, it is expressly stated that the daughters 'had a vested remainder in fee'. He added the following comments, 224 U.S. at p. 238, 32 S. Ct. at page 423: 'The fact that the property was directed to be sold, and that they were described as distributees of the proceeds, did not postpone the vesting of the interests.'
The same principles have been applied in Maryland, Cox v. Handy, 78 Md. 108, 27 A. 277, 501. In that case the testator created a life estate and directed that after the death of his wife, the property devised to her 'shall be sold if necessary for equal partition, or, if the same can be accomplished without a sale, shall be divided amongst my children, share and share alike, the child or children of any deceased child to take the portion to which the parent, if living, would have been entitled.' The court reached the conclusion that each of the testator's children living at his death took a vested remainder.
That the gift is couched as a direction to the trustee to turn over and deliver the property to the children, instead of being expressed as a devise and bequest to the children, is immaterial. It does not affect the conclusion that each of the children received a vested remainder. The rule that if the only words of gift are found in a direction to divide or pay at a future time, the interest is contingent and not vested, does not prevail in the District of Columbia.
The conclusion necessarily follows that William A. Behrens received a vested remainder. As he died without issue during the existence of the life estate, the remainder was not divested, since it could be divested only on the contingency of his death leaving issue while the life tenant was alive. As William A. Behrens died intestate, his interest passed to his widow and his next of kin.
Judgment in accordance with the foregoing opinion. Counsel will please submit proposed findings of fact and conclusions of law, and a proposed form of judgment.