The opinion of the court was delivered by: HOLTZOFF
This is an action for the construction of the will of Louis Behrens, which was admitted to probate in 1921. Margaret G. Behrens, the life tenant named in the will died on September 12, 1946. The problem presented for solution in this proceeding relates to the distribution of the corpus in fee simple. The specific question is whether certain future interests created by the will are vested or contingent remainders.
The will of Louis Behrens created a life estate for the benefit of the testator's daughter, Margaret G. Behrens. The following provision follows: ' * * * and after the death of my said daughter, the said trustees are authorized and directed to turn over and deliver
the said residue and remainder of said proceeds arising and remainder of said proceeds arising from the sale or sales of my said estate, both real and personal, to my said four children, Anita E. Phillips, Bertha Judge, William A. Behrens and Charles C. Behrens, in equal parts, share and share alike, their heirs or assigns unto them absolutely and in fee simple. * * * And in case any of my said children, excepting my said daughter, Margaret G. Behrens, should die before the actual division or distribution of the residue of my estate, then and in such event the child or children of such deceased child or children shall stand in place of his or her parent and take his or her share in such division or distribution.'
As stated above, the life tenant died on September 12, 1946. One of her brothers, Charles C. Behrens, survived her. Another brother, William A. Behrens, died without issue while the life tenant was alive. Two sisters, Bertha Judge and Anita Phillips, died leaving issue during the existence of the life estate. It is necessary to determine what disposition is to be made of the interest devised and bequeathed to William A. Behrens. The answer to this question, in turn, depends on whether he received a vested or a contingent remainder.
It is well established that if a person creates a life estate with a remainder to his children or grandchildren and with the additional provision that if any of the children or grandchildren, as the case may be, should die during the existence of the life estate leaving issue, such issue shall take their parent's share, each of the children or grandchildren receives a vested remainder. It is subject to open and let in after-born members of the class and subject to be divested on the one contingency named in the will, namely, death leaving issue during the existence of the life estate, Doe v. Considine, 6 Wall. 458, 18 L. Ed. 869; McArthur v. Scott, 113 U.S. 340, 5 S. Ct. 652, 28 L. Ed. 1015; Hauptman v. Carpenter, 16 App.D.C. 524; Fields v. Gwynn, 19 App.D.C. 99; Young v. Munsey Trust Co., 72 App.D.C., 73, 111 F.2d 514; O'Neill v. District of Columbia, 77 App.D.C. 79, 132 F.2d 601; Pyne v. Pyne, 81 App.D.C. 11, 154 F.2d 297; Central Dispensary and Emergency Hospital v. Saunders, D.C.Cir., 165 F.2d 626; American Security & Trust Co. v. Sullivan, D.C., 72 F.Supp. 925; Gibbens v. Gibbens 140 Mass. 102, 3 N.E. 1, 54 Am.Rep. 453; Weir's Estate, 307 Pa. 461, 161 A. 730.
I had occasion to review this matter in detail in American Security & Trust Co. v. Garnett, 81 F.Supp. 21.
This case, however, presents an additional question. The clause of the will that creates the remainders is not couched in the phrascology of a present devise or bequest but is a direction to the trustees to turn over and deliver the property to the remaindermen upon the termination of the life estate. It is urged that this circumstance transforms what otherwise might be a vested remainder subject to being divested into a contingent remainder.
It is true that this contention is supported by New York decisions. The New York rule is best stated in the case of In the Matter of Crane, 164 N.Y. 71, 76, 80, 58 N.E. 47, 48, as follows:
'Where the only words of gift are found in the direction to divide or pay at a future time, the gift is future, not immediate; contingent, and not vested.
'Without pursuing this subject further, I state the conclusion at which we have arrived: That aside from the direction to the executors or trustees to divide and distribute the estate, there are no words importing a gift, and hence it becomes our duty to give force and effect to the rule that, where the only gift is found in a direction to divide or pay at a future time, the gift is future, not immediate; contingent, and not vested.'
Paget v. Melcher, 156 N.Y. 399, 405, 51 N.E. 24, holds to the same effect. The same doctrine has been approved and followed in Massachusetts, Crapo v. Price, 190 Mass. 317, 322, 323, 76 N.E. 1043, and in Pennsylvania, Rosengarten v. Ashton, 228 Pa. 389, 394, 77 A. 562.
The so-called New York rule is obviously somewhat artificial, because it employs as a test, not the nature of the testamentary scheme, but the precise phraseology in which the testator chose to express his wishes. This doctrine has never been adopted in the District of Columbia, insofar as research discloses. On the contrary, both the Court of Appeals for the District of Columbia, and the Supreme Court of the United States in disposing of cases originating in the District of Columbia have, in effect, reached the conclusion that it is immaterial whether the devise or bequest is couched in the words of a present gift to come into possession and enjoyment at a future date, or whether it is expressed in the form of a direction to deliver or pay at a future time. Irrespective of the form of expression, future interests of the type here involved are 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 ...