Smith v. Block

White, J. The claim of the plaintiff is, in substance,, that each of the children of Catharine and Elijah Smith took, under the conveyance of Helen McDowell, a vested estate for life in the property conveyed; and'that on the-subsequent conveyance to them by Elijah Smith of his-interest, the estate of each became, under the doctrine qf merger, enlarged into an estate in fee, subject only to the' life estate of Catharine Smith. This claim is founded on a misconception of the effect of the deed of Helen McDowell to Catharine Smith and the-children. Under this deed, Catharine Smith took an estate for her own life, and Elijah took a vested remainder in fee, subject to an intervening life estate in favor of such of the children as might survive their mother. The children are provided for as a class, and it is only such of the class as survive the mother for whom provision is made. If none of the children should survive the497 mother the intervening estate would be destroyed, and the remainderman in fee would be let in to the possession immediately on the determination of the life estate of Catharine. But if any of the class survive the mother, the survivors take the intervening estate, and thus postpone the remainder-man in fee until the intervening estate is determined. At the time of the conveyance of Helen McDowell, there was neither an immediate right of present possession to the property nor a present fixed right of future possession in either of the children. During the life of the mother, the right of the children to the possession of the estate was uncertain, depending upon their surviving their mother, the right belonging only to such as might so survive. It is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent. 4 Kent, *206. Without, however, entering into a consideration of the refinements which sometimes distinguish vested from contingent remainders, it may be remarked that the present case comes clearly within the fourth class of contingent remainders, as laid down by Mr. Eearne. This class is thus defined by that writer: “Where the-person to whom the remainder is limited is not yet ascertained, or not yet in being.” 1 Fearne, *5; 4 Kent, *207. Whether, in the present case, any of the children, and if any, which of them, would survive their mother, could, not be ascertained until her death. That it was only such of the children/ as might survive' their mother who were intended to take, is apparent from the language of the habendum, as well as from the nature ofdhe provisions made for the children. The nature of the provision was such that it could only subsist during' the life or lives of such of them as might thus survive. The language of the habendum is: “ To have and to' hold the same to the said Catharine Smith, during her [498] natural life, aucl after her death, to the said surviving children of Catharine and Elijah Smith. . . .” ' The expression “ said surviving children ” refers to the children before mentioned in the granting clause, and shows expressly, what would otherwise be implied, that it was the children who might survive their mother for whom provision was made. The plaintiff’s wife having died before her mother, she took nothing under the deed of Helen McDowell. What rights, if any, he may have through her under the conveyance of Elijah Smith to the children, is not a material inquiry in the present case ; for under that conveyance no right of possession can accrue until after the determination of the intervening life estate of the children. Leave refused.