McGillis v. McGillis

LANDON, J. In the action of Beck v. McGillis, 9 Barb. 35, the heirs of the testator obtained a decision which, as between them and the first-born four children of Mrs. McGillis, gave to the heirs the remainder upon the death of Mrs. McGillis. That is of no consequence here, since no party to this action claims under the heirs of the testator. The judgment in the case of Van Cortlandt v. Laidley, 59 Hun, 161, 11 N. Y. Supp. 148, excluded the heirs of the testator from any title to the remainder, because the title to the same was vested in the four after-born children of Mrs. McGillis. But this case decided nothing in respect to the share of the infant, Morrison Janús, because he was not a party to the action. Whether his share [924] is one-fourtii or one-seventh is a question unprejudiced by the judgments in either of the actions mentioned. I think his share is one-* seventh. The “remainder” to the “lawful issue of my daughter then living”—that is, at the daughter’s death—was a contingent remainder. When the testator died, there were no persons' in being who could take the remainder under the will. This was not any objection to its validity. 1 Rev. St. p. 725, § 28; Purdy v. Hayt, 92 N. Y. 446. The existing issue of Mrs. McG-illis were then incompetent to, taire, because of their alienage. But the disability of their alienage might be removed. Other children not subject to such disability might be born to her. Thus, the persons to whom the remainder was limited were uncertain, and thus a contingent remainder, as defined by the statute, was created. 1 Rev. St. p. 723, § 13; Moore v. Littel, 41 N. Y. 66; Hennessy v. Patterson, 85 N. Y. 91, 104. This situation was contemplated by the testator; for, by apt words, he postponed until his daughter’s death the determination of the persons who should take the remainder, though he defined the class of persons who should take it. This the section of the statute above cited permitted the testator to do. Upon the birth of a child to Mrs. McG-illis, after the death of the testator, the remainder ceased to be contingent, and became vested in that child; that is, as our courts have been constrained to use the term “vested,” under the thirteenth section of the statute. ' Although vested, it was liable to be divested by the child’s death in the lifetime of the mother, and also the interest of such child while living was liable to open and be diminished by the birth of after-born issue, and also by letting in the prior-born children, the moment their disability, through alienage,'should be removed. Campbell v. Stokes, 142 N. Y. 23, 36 N. E. 811. In like manner it may be said that upon the testator’s death, since there was then no person in existence who could take the remainder under the will in case Mrs. McG-illis had died before giving birth to another child, and before the disability of her first-born was removed,' the remainder vested in the heirs of tire testator as in case of intestacy; but, if so, it was liable to be divested, and was, in fact, divested, by the coming into existence of her after-born child, or by the acquisition in her lifetime of the capacity by the prior-born to take under the devise. The term “vested,” as used in the thirteenth section of the statute, must be considered with reference to the subject-matter vested. We must distinguish, says Mr. Washburn, quoted in Hennessy v. Patterson, 85 N. Y. 103, “between the vesting of a right to a-future estate of freehold, the vesting- of a freehold estate in interest, and the vesting of the same in possession.” Sow, upon the birth of the first child of the after-born children of Mrs. McG-illis, the thirteenth section authorizes us to say that the remainder was solely vested in that child, because, if Mrs. McGillis had then died, that child would have been the only person answering to the testator’s designation of his ultimate devisee. But of what estate in the remainder was he vested? Of a present right to its future possession, —a right liable to be diminished or defeated by possible future events, inherent in the nature of his right,' and entirely beyond his control. Thus, the term “vested” is not here the exact opposite of [925] "contingent,’’ but is in a measure confused with it. It has the quality of opening and sharing, of ending and shifting, in such way that he who yesterday was the only person vested to-day has others sharing with him, and to-morrow may be wholly divested, and this, too, against his consent. There, probably, is some lack of accuracy in using the term in this sense; some confusion of the common-law distinction between vested and contingent estates. Judge Grover pointed it out in his dissenting opinion in Moore v. Littel, supra, and it has not escaped other criticism (6 Alb. Law J. 361; Gray, Perp. § 107); but the shifting sense has the support of authority. The argument against the power of the legislature to qualify the four first-born children of Mrs. McGillis to take under the devise of the testator rests upon the assumption that title to the ultimate possession of the remainder absolutely vested either in the heirs of the testator or in the after-born children of Mrs. McGillis. It wholly fails when we see that such vesting was not of the absolute right to the ultimate possession of the remainder, but of a contingent right to it; the contingencies inhering in the right as created by the testator, and only absolutely to be put at rest by the death of Mrs. McGillis. Then those who were within the class designated by the testator became vested of the remainder in possession, and until then all the issue of Mrs. McGillis were eligible to enter the class,—the after-born by birth within it, the prior-born by the enabling qualification of the statute. Thus, the statute affected the right of the first-born to come within the class to be benefited by the devise, and this was plainly within the intention of the testator; and thus the statute aided his purpose, instead of defeating it. His heirs never acquired any title, because lie w'as not intestate, and thus the statute did not affect them. The after-born held their title during Mrs. McGillis’ life, subject to such laws as to the admission of the first-born as might be enacted. Such is the meaning of the will, and such was the nature of their interests. In re Baer, 147 N. Y. 348, 41 N. E. 702. When Mrs. McGillis died, her lawful issue, capable of taking both under our statutes and under the terms of the will, consisted of all her lawful issue then living,—her six children, and the infant, Jarvis, her grandchild: and each took one-seventh of the remainder in fee. I agree with Mr. Justice PUTNAM that the share of the infant, Jarvis, is not bound by the contract made with Mr; Hayden. I advise that so much of the interlocutory judgment as charges the share of the infant, Jarvis, wiili a lien in favor of Mr. Hayden, be reversed; in other respects, that the judgment be affirmed; costs of both parties to be paid out of the fund. PARKER, P. J., and MERWIN, J., concur.