Spear v. Fogg

Haskell, J. "I give to my sisters, Mary S. Pecker and Frances S. Fogg, in equal shares, all the rest and residue of my estate, Teal, personal, or mixed, of which'I shall die seized and possessed, or to which I shall be entitled at the time of my decease, to have and to hold the same for and during the term of their natural lives, and at their decease, to descend to their children respectively, and to be equally divided among them or the survivors of them.” Does this devise-create a vested, or a contingent remainder in the children of the devisees respectively ? If a vested remainder, the children of Mary having all died intestate and without issue before her, she inherited the same from them, and having since [139] died it goes to her heirs, nephews and nieces, the plaintiffs, petitioners in this case, to the exclusion of defendants, her grandnephews and nieces. But if a contingent remainder that never vested, it descended to the heirs of the testator, his brothers and sisters then living, and by right of representation to their descendants, both the plaintiffs and defendants, nephews and nieces and grandnephews and nieces. The share of Mary, however, going to her heirs, the plaintiffs, her nephews and nieces, and not to the defendants her grandnephews and nieces. A vested remainder is an estate in presentí, although to be enjoyed in the future. A contingent remainder is au estate to vest upon the happening of some future event. The devise in question is to Mary for life, and at her decease equally to her children or to the survivor of them. If she had no children the remainder could not vest. If she had several, it would go to those surviving at her death, and it could not vest before that time, because of the uncertainty as to which of them might survive. If oue only should survive, he would take and no mortal could tell which one he might be. None survived her, and none had any estate in the devise that she could inherit. In Hunt v. Hale, 37 Maine, 363, the devise was to the widow for life, and at her decease equally among all his children and the "heirs of such as might then be deceased.” And the court held the remainder contingent, from the uncertainty as to who would take at the death of the widow, an event to happen in the future. In Leighton v. Leighton, 58 Maine, 63, the devise was to the widow for life, then to "My third son Reuel,” and the court held the remainder vested, and distinguish between the case and Hunt v. Hale, supra, remarking in that case the division was to be equal "between the children of the testator and the heirs of such as may then be deceased,” and that "if the estate were to be construed as vesting at the death of the testator, then one of the heirs might convey his share by deed, and if he died before the termination of the life estate, leaving heirs, his conveyance might defeat their estate, which would be contrary [140] to the express provision of the will.” A reason that demonstrates the true construction of the will before the court; for if the remainder vested, a conveyance by one child, Avho should not prove to he the survivor, might deprive the survivor of estate specifically appointed to him by the will. In Read v. Fogg, 60 Maine, 479, a deed gave a life estate to Margaret, and the remainder "after her decease to her legal heirs.” The court held the remainder contingentsaying the heirs might be different individuals during the continuance of the life estate, and therefore the remainder ivas contingent. That "such has been the uniform decision of this State and in Massachusetts,” citing Hunt v. Hale, supra; Richardson v. Wheatland, 7 Met. 171; Putnam v. Gleason, 99 Mass. 454. See also Smith v. Rice, 130 Mass. 441: Denny v. Kettell, 135 Mass. 138, a case exactly in point. Under the settled doctrine in this State, the remainder mentioned in the devise in question was contingent and did not vest, therefore the estate descends to the heirs of the testator. They were brothers and sisters, and it goes to their descendants respectively by right of representation. Mary’s share, however, goes to plaintiffs only. Partition accordingly, with costs for defendants. R. 8., c. 88, § 10.