Bond v. . Bond

Adams, J. The controversy is to be determined by the interpretation of the second item of the will. If Fannie Bond, who was born 14 September, 1926, acquired a vested remainder under this item there is no error in the judgment. The right of sale for reinvestment was settled in McLean v. Caldwell, 178 N. C., 424. Fearne says: “Wherever the preceding estate is limited so as to determine on an event which certainly must happen, and the remainder is so limited to a person in esse, and ascertained, that the preceding estate may, by any means, determine before the expiration of the estate limited in remainder, such remainder is vested. On the contrary, wherever the preceding estate is limited so as to determine only on an event which is uncertain and may never happen, or wherever the remainder is limited to a person not in esse, or not ascertained, or wherever it is limited so as to require the concurrence of some dubious, uncertain event, independent of the determination of the preceding estate and duration of the estate limited in remainder, to give it a capacity of taking effect, then the remainder is contingent.” Fearne on Eemainders, Vol. 1, pp. 216, 217. When the remainder is given to a person not in being the preceding estate is not limited by an event which certainly must happen. At the time the will was made it was uncertain whether the life ’tenant *450 would be the father of a daughter who should be named for the testatrix, and for this reason the remainder was then contingent; but when the daughter was born and named the remainder eo instanti became vested. The devise is, “After his death to his oldest daughter, if he shall have one, who shall be named for me.” Fannie was his only daughter, and necessarily he could have none older. “If A. be a tenant for life with remainder to B.’s eldest son (then unborn) in tail; this is a contingent remainder, for it is uncertain whether B. will have a son or no; but the instant that a son is born, the remainder is no longer contingent, but vested.” 2 BL, 169. See 23 R. C. L., 499, sec. 30. The infant by reason of her vested estate had such seizin in the land as was necessary to make her interest descendible to her heirs. Early v. Early, 134 N. C., 258; Tyndall v. Tyndall, 186 N. C., 212. There is a discussion of the subject with citation of authorities in Power Co. v. Haywood, 186 N. C., 313. The judgment is Affirmed.