Hawkins v. Bohling

Mr. Justice Garter delivered the opinion of the court: The interest claimed by plaintiffs in error in the property in question as heirs-at-law of Ann M. Shepherd, deceased, depends entirely upon the question as to whether Margaret Craig took by the will a vested or only a contingent remainder. The legal title, for the purposes of the execution of the trust created by the will, was vested in defendant in error George B. Bohling, as trustee'. But it is well settled that there may be vested equitable as well as vested legal interests or remainders, and if Mrs. Craig took a vested equitable interest, then, notwithstanding she died before the death of the husband of the testatrix, Edwin L. Shepherd, the life tenant, her interest descended to her heirs-at-law, who were defendants in error T. E. Craig and Walter Craig. If, on the other hand, her interest was contingent only, her death before it vested rendered it intestate estate, and it passed to the heirs-at-law of the testatrix, who at the time of the filing of the bill were the complainants below. It must be presumed that the testatrix intended by her will to dispose of her entire interest in the property, and not to die intestate as to any part of it. So strong is this presumption that it has sometimes been said, with some extravagance, perhaps, that it will justify almost any construction of a will which will defeat intestacy as to a part of the estate. (2 Redfield on Wills, 235; Higgins v. Dwen, 100 Ill. 554; Hayward v. Loper, 147 id. 41.) Again, the law favors the vesting of estates rather than that the title shall be in abeyance, and it was said in Scofield v. Olcott, 120 Ill. 362 (on p. 374): “It has long been a settled rule of construction in the courts of England and America, that estates, legal or equitable, given by a will, should always be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent on a future event.” (McArthur v. Scott, 113 U. S. 235; Kellett v. Shepard, 139 Ill. 433.) As said in 4 Kent’s Commentaries, 205: “It is not the uncertainty of enjoyment in the future, but the uncertainty of the right to that enjoyment, which makes the difference between a vested and contingent interest.” (Temple v. Scott, 143 Ill. 290.) With these rules in mind, it must be held that Margaret Craig, upon the death of the testatrix, took a vested interest. The person who was to take was in esse and named in the will. Her right to the property was not to depend upon any dubious or uncertain event. The mere fact that power was given to the trustee to sell upon the request of the life tenant, and to use the proceeds for his support, did not make Mrs. Craig’s interest contingent, for the interest may vest subject to the power, and may be liable to be defeated or destroyed by its exercise and still not be a contingent as distinguished from a vested interest. Thus, “a devise to a person after the payment of debts and legacies is not contingent until such debts and legacies are paid, but confers an immediately vested interest.” Ducker v. Burnham, 146 Ill. 9; Scofield v. Olcolt, supra. But it may be said that here there was no original gift to Mrs. Craig, but only a direction to sell and pay over to her after the death of the life tenant, and that in such a case the interest, which is in personalty, is held by the authorities to be contingent. To this point it is sufficient to reply, that it appears by the will that the payment or distribution was postponed for the convenience of the estate,—that is, to let in the prior interest given to the husband,—and was not postponed for reasons personal to the legatee, and that in such cases the interest will vest on the death of the testator. Had it been postponed until Mrs. Craig should have arrived at a certain age, or until the happening of some event personal to herself which might never happen, a different construction might be required. Scofield v. Olcott, supra, and authorities there cited. It appearing, then, that Mrs. Craig’s interest vested in her at the death of the testatrix, it passed to her heirs upon her death before the death of the husband of the testatrix, and plaintiffs in error, who filed the bill below, took no interest as heirs of the testatrix. Nor did the cross-complainants, as heirs of the husband, Edwin L. Shepherd, take any interest in the property. The husband took and enjoyed during his life the life estate and benefits given to him by the will, and his heirs cannot now elect to take contrary to its provisions. The demurrers to the bill and cross-bill were properly sustained, and the decree is affirmed. Decree affirmed.