Bartram v. Powell

Prentice, C. J. The situation presented by this case is precisely similar to that in Norton v. Mortensen, ante, p. 28, 89 Atl. 882, except in three particulars, to wit: 1. Two life estates, instead of one, precede the gift over in fee which is in question. 2. The children in whose favor this gift over is made are not those of the testator but of other persons named. 3. There is an alternative gift over in fee upon condition, which gift takes such precedence of the one in question that, if the condition is satisfied, the beneficiaries of the preceding gift over will take the fee absolutely to the entire defeat of all interest under the other, whereas in the former case the gift over in fee was directly and unqualifiedly to the testator’s children. The rule of construction approved in the former case must, therefore, be controlling in the determination of the contentions here, unless some one or more of the changed conditions enumerated suffice to bring the situation out from under its application. That rule was that where a will contains a limitation over to children, whether of the testator, the first taker, or other person, with the right of enjoyment or time of distribution postponed, it will, in the absence of a clear expression in the will of a contrary intent on the part of the testator, be construed as one to the children as a class, vesting in interest immediately upon the death of the testator, and embracing as its ultimate beneficiaries both those children who are in existence at the death of the testator and such as may subsequently come into being before the time of enjoyment or distribution arrives. *90 It is apparent that the number of the preceding estates, which may have been carved out of the fee, if only no one of them is a fee, and a portion of the fee remains to be disposed of, is a matter of no importance. The two preceding estates here were life estates, and a remainder was left for disposition. We are concerned with the disposition of that remainder only. The incident that the donees are children not of the testator but of other persons, does not take the situation out from the operation of the rule. It expressly contemplates such a class of children. The fact that the will first provides for a limitation over after the two life estates to the lawful issue of Charles, if any, and then, in the event that he died without issue surviving, to the children of Scofield and Adams, is also one of no material consequence in its bearing upon the operation of the rule. The conditional gift to Charles’ surviving issue, if any, did not prevent a vesting in interest in these children under the alternative limitation to them. With such favor does the law look upon a vested, as distinguished from a contingent, interest, that we, in common with other courts, have come to recognize a vesting in interest by way of a contingent remainder or executory devise. Beckley v. Leffingwell, 57 Conn. 163, 166, 17 Atl. 766; Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl. 503; Ingersoll v. Ingersoll, 77 Conn. 408, 410, 59 Atl. 413; Perry v. Bulkley, 82 Conn. 158, 168, 72 Atl. 1014; Carpenter v. Perkins, 83 Conn. 11, 16, 74 Atl. 1062; Allen v. Almy, 87 Conn. 517, 89 Atl. 205; Dunn v. Sargent, 101 Mass. 336, 338; Peterson’s Appeal, 88 Pa. St. 397, 402. “The term ‘vested,’ as applied to remainders, has unfortunately been used in English and American law with two meanings. It may signify simply a remainder so far vested as to be capable of alienation, and the subject of succession by inheritance. It may also signify a *91 remainder so absolutely vested that the remainder-man is certain to come into possession immediately upon the determination of the precedent estate.” Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl. 503. We have no occasion to inquire whether the gift over to the children was in strictness a contingent remainder or an executory devise. The two are governed by the same rule so far as concerns their alienation or transmission. Ingersoll v. Ingersoll, 77 Conn. 408, 410, 59 Atl. 413. The important question for us is whether or not it vested so as to be alienable and transmissible by inheritance. The cases cited furnish the answer to this question. “Upon the death of one in whose favor either may have been created, although the contingency has not occurred on which his right to ultimate enjoyment may depend, it will form part of his estate, unless his survival until the termination of the prior estate is a condition of his taking any benefit from it, and a condition precedent.” Ingersoll v. Ingersoll, 77 Conn. 408, 410, 59 Atl. 413. In the case last cited application of this principle was made to conditions precisely like those before us. There was a gift over to one if living when the particular estate terminated, and if not, to others. We said that these last took a vested interest which was transmissible. The cases cited from this jurisdiction all present situations similar in all material respects to those in this case. The first of them furnishes a good illustration of the others. There was a gift over after a life use in favor of a son to his children born in lawful wedlock, if any, and if none, to the testator’s grandchildren. It was held that the grandchildren as a class took on the death of the testator a vested interest by way of contingent remainder (possibly inaptly described as a vested contingent remainder) subject to being divested *92 by the birth of a child to the son. Beckley v. Leffingwell, 57 Conn. 163, 17 Atl. 766. In the subsequent cases we held, what was not' in that case expressly determined, that the interest so vested was an alienable and transmissible one. It is scarcely necessary to add that there is in this will no indication of a testamentary intent that the property in question should be divided among those of the children only who survived to the termination of the particular life estates. The preceding gift in remainder did not prevent a vesting in interest in the children of Scofield and Adams as a class, with the result indicated in the rule stated, to wit: that one ninth of the testator’s estate in the plaintiff’s hands for distribution under paragraph six belongs to Mrs. Powell and one ninth to the estate of each of the deceased children of Scofield and Adams. The executors or administrators of these several estates are the only persons entitled to receive from the plaintiff the shares which would have gone to the respective children had they survived. The heirs of a deceased child are not entitled to.take in his or her stead. Their rights to possession accrue only through proceedings in the Court of Probate, which, by possibility, may establish a prior right on the part of creditors. The proper representative of each estate, executor or administrator, should have been made a party. It was proper that the heirs of the deceased child should be cited in, but the legal representatives of the several estates are so far necessary parties that a final judgment ought not to be rendered without their presence, and that no judgment, adverse to any claim that might be urged in favor of the estates, can be rendered with binding effect. In the present case our conclusion gives to the several estates all that could be claimed for them, and we have therefore consented to take the course pur *93 sued, in White v. Smith, 87 Conn. 663, 89 Atl. 272, under similar conditions, and send down our advice to the Superior Court, leaving it to see that the proper steps are taken before final judgment is entered up. The Superior Court is advised that the limitation over to the children of Edwin Scofield, Jr., and Nathaniel E. Adams, contained in paragraph six of the will, vested in the children of said Scofield and Adams who were alive at the time of the death of the testator, John W. Harms, and that the defendant Julia A. Powell and the legal representative of each of said children who are now deceased are each entitled to receive from the plaintiff a one-ninth portion of the property in his hands in satisfaction of the provisions of said paragraph sixth. No costs in this court will be taxed in favor of any party. In this opinion the other judges concurred.