Kimball v. Tilton

Endicott, J. By the second clause of the will, Edward R. Kimball, upon the decease of his father, took a vested remainder in fee in one third of his father’s estate, the possession of which was postponed until the' death of his mother and his sister Augusta. Is this provision controlled by the proviso which follows it? The proviso looks to two contingencies. The first is, if he shall die before Augusta, “ leaving lawful issue then living, such issue shall take the parent’s share.” It is contended that as he did die before Augusta, leaving a son, that his share never vested, or if it vested was divested by the happening of the contingency. In Hill v. Bacon, 106 Mass. 578, a testatrix left certain real estate to her husband for life, and upon his decease to her children, and if on the decease of the husband, either of the children had deceased, “ leaving issue, such issue shall take their parents’ portion." The words are in substance the same as the words of this will, and it was held that the children took vested remainders in fee absolutely. So far, the proviso does not control what precedes it. The second contingency is, that for want of such issue, such share shall go to his heirs at law. A double event is here contemplated, the death of Edward before Augusta, and without issue. He left issue, and the event intended to be provided for has not happened. Whether this may or may not be regarded [315] as a condition subsequent, which would postpone the vesting of the estate, or divest it, if vested, upon the happening of the event, it is not material to determine. The contingency did not occur, and in either aspect the fee became absolute. Blanchard v. Blanchard, 1 Allen, 223. The administrators of the estate of Stephen Tilton are therefore entitled to be paid the $5000 and interest which was secured to their testator by the indenture made with Edward R. Kimball during his lifetime. But as Stephen Tilton, by his agreements with the plaintiff, gave up and surrendered his claims upon the estate of Edward R. Kimball until the sums of money due to the plaintiff from Edward R. were paid, the sums so due must first be deducted from the share of Edward R. before the claim of the administrators can be paid. If the parties fail to agree upon the sum due the trustee from Edward R. the case must be sent to a master to determine the amount. Decree accordingly.