half vested in them, subject to be divested in favor of any children Cornelia Ross Potts might bear, as they formed the class of persons entitled under the will to the other half, and that their successors in interests are the persons who fit the description in the devise of 'such person or persons as may then be entitled to' the other half. Reliance is had upon the principle of law as stated in 3 Page on Wills, Section 1258, page 284: 'If the owner of a future interest, which could descend or pass by succession, dies before his interest could take effect in possession, his interest passes to his heirs, devisees, next of kin, or legatees, if it is vested, unless it is subject to an express condition subsequent, the happening of which has defeated the future interest.'
The cases of Pyne v. Pyne, 81 U.S.App.D.C. 11, 154 F.2d 297, and Scott v. Powell, 86 U.S.App.D.C. 277, 182 F.2d 75, are cited in brief as supporting this principle in the District of Columbia, as indeed they do.
All of the bequests dealing with this trust, both as to the half interests and the quarter interests, employ language similar to that dealing with the Potts half, as follows: 'Should the said Cornelia Rebecca die and should said Cornelia Ross also die, she the said Cornelia Ross leaving any child or children or the descendant of any deceased child or children surviving her, * * * then the trust hereby created shall as to said one-half of my estate cease and determine, and the said one half of my estate * * * shall vest in and the same is hereby devised to such child and children of said Cornelia Ross as the said Cornelia Ross may leave surviving her, and the descendants of any child or children, such descendants of any deceased child or children to take the parent's share or part.' (Emphasis supplied.)
From this it is evident that the testatrix intended to create two stocks, commencing with her two sisters, the descendants of each to take per stirpes, with no power of appointment of any interest. With this intention of the testatrix in mind, the above principle of law and the cases cited, relied upon by the intervening defendant, are very helpful. While the surviving children of Charles A. Hadel took a vested remainder interest in the Potts half of the estate, such interest was subject to divestment, not only upon the death of Cornelia Ross Potts leaving children surviving her, but also upon their own death during the life of the life tenant, Cornelia Ross Potts. So, as in the Pyne case, supra, the interests of these persons were defeasible, and the bequests of two of them, Ada Amelia Hadel and William K. Hadel, were subject to the same defeasance. And, as they predeceased the life tenant, no interest in the Potts half of the estate passed by their wills; nor did defendant Elizabeth C. McClurkin inherit from her mother, Clara Elizabeth Constantine, any interest in the Potts half. My conclusion, therefore, is that the defendants Marie Louise Ellen Hadel Sparks and Elizabeth C. McClurkin are the 'persons as may then be entitled to * * * the other half of my estate,' and the Potts half of the estate vested in them outright upon the death of Cornelia Ross Potts with no child or children surviving her, and they are entitled to the relief sought in these proceedings.
Upon the asking of the intervening defendant, and consent of the other parties, Cristodulo Constantine, surviving husband of Clara Elizabeth Constantine, was added as party defendant in this cause for a determination of whether he is entitled to an estate by curtesy in one-third of the Potts half of the estate. As has already been pointed out, Clara Elizabeth Constantine during her lifetime had no possession, or right of possession, to the property in which Cornelia Ross Potts had a life interest, and whatever interest she did have in such property was divested upon her death during the lifetime of the said Cornelia Ross Potts. 'It is well settled that at common law the husband can be tenant by the curtesy only of lands of which his wife was seized. So, unless otherwise provided by statute, no right of curtesy exists where the wife during coverture did not have seizin either in fact or in law, or, in other words, did not have either possession or the immediate right of possession.' 25 C.J.S., Curtesy, § 5, page 45. The statute applicable in the District of Columbia is Section 18-215, D.C. Code (1940)
. Clearly the wife of Cristodulo Constantine was not seized in deed or in law of the property here involved, and, therefore, he has no estate of curtesy therein.
Summary judgment is, therefore, granted in favor of the defendants Marie Louise Ellen Hadel Sparks and Elizabeth C. McClurkin against the plaintiffs, the intervening defendant and the added defendant Cristodulo Constantine. An appropriate order will be drafted by counsel to carry this into effect.