Montgomery v. Petriken

The opinion of the court was delivered by Low-rib, J. The devise over to Robert and James after the death of William is in form a vested remainder, and we think it is so in substance. The estate is really granted to William for life, with remainder in fee to Robert and James, and it is only on condition that William shall recover his sanity that he is to have a fee, and then it is to be by defeating the fee previously granted to the others. Their fee is vested subject to be defeated if ever the event contemplated should happen. The estate to arise in case William should become sane, was by way of a conditional limitation on the fee previously granted, as may be fully seen in Smith on Ex. Inte [121] rests, §§ 148-157 and 170-195, being the same book referred to by counsel as 2 Fearne. If the devise had been to William for life, with remainder in fee if he should ever become sane, a reversion would have remained vested in the heirs of the devisor, and # devise of it would very plainly be a vested remainder. Then there was nothing to prevent Robert and James from binding themselves and their heirs by a contract of partition, and consequently the heirs of James’s heir must be satisfied to take their share out of the part allotted to James in the partition. Robert is entitled to hold the other half in severalty. The intestate,having derived her title by devise from her grandfather and by descent from her father, her heirs, after her mother’s life estate, are her next of kin on her father’s side, that is to say, her father’s brothers and sister. Cousins are not next of kin so long as there are any uncles or aunts (unless they have been made so by the Act of 1855): 3 W. # S. 353. It seems to us, therefore, that each of these plaintiffs became entitled to one undivided fourth of what had been James’s divided half, after the death of James’s daughter and of William, but the special verdict is not stated with sufficient accuracy to enable us to decide as to the quantity. Judgment reversed and new trial awarded.