Drew's Adm'r v. Drew

BRICKELL, C. J. It is plain that the will of Mrs. Flowers created an estate for life in Mrs. Drew, and, on her death* an estate'in remainder in such of her children as were then living. The remainder vested immediately on the death of Mrs. Drew; and if it is conceded that it was subject to be divested, on the happening of a future event or contingency, that event or contingency must have occurred, to work the divestiture. If that event or contingency has not occurred, the estate remains as it is created by the will.—Sherrod v. Sherrod, 38 Ala. 537. The event or contingency, upon which it is insisted the estate in remainder is subject to be divested, is the death of either of the children, leaving children, before there was a partition, and an allotment to each child of his or her share of the lands and other property devised and bequeathed. But this is not the contingency which has happened. Thomas Drew, the intestate of the appellant, died after his mother, before partition, without leaving children. The rule is well settled, that when, by clear and unambiguous words, an absolute gift is made, and a contingency provided in which the gift is to be defeated, it will not cease until that contingency occurs. There can be no inference, or implication, that it shall cease or terminate in any other event, or on any other contingency.—1 Roper on Legacies, 618, 782; 2 Fearn’s Rem. 377; Harrison v. Foreman, 5 Ves. 207. Such was the manifest intention of the testatrix; for it is only in [457] the event a remainder-man died, leaving a child or children, that there is a gift over, and the gift over is to his or her children. The Court of Probate erred in ruling that the estate of Thomas Drew in the lands was terminated by his death before partition. * Reversed and remanded.