Voorhees v. Singer

Lbaming, Y. C. I am unable to discern any element of uncertainty or doubt in the solution of the question here presented. The interest of Eobert B. Hull in the trust bequest was that of a contingent remainder. He having died without issue prior to the termination of the life estate, one-third of the trust bequest lapsed at his death. In the absence of a defined inclusive residuary bequest testatrix died intestate as to this one-third of the trust property. In such case the next of kin of testatrix at her death take this one-third in accordance with the statute of distribution. Mulford v. Mulford, 42 N. J. Eq. (15 Stew.) 68, 74. The distinction between a vested and contingent remainder, in a case like the present one, is well defined. The former is one that is so limited to a person in being and' ascertained that it is capable of taking effect in possession or enjoyment on a certain determination of the particular estate, without requiring the concurrence of any collateral contingency. The uncertainty as to the remainderman ever enjoying the estate, which is limited 535 to liim by way of remainder, will not render such remainder a contingent one, providing he has, by such limitation, a present absolute right to have the estate the instant the prior estate shall determine, but the absence of such present absolute right renders the estate a contingent remainder. Weehawken Ferry Co. v. Sisson, 17 N. J. Eq. (2 C. E. Gr.) 475, 478. These principles are applicable to personal property. 2 Kent Gom. *852. Thus, in the present case, the remainder to Eichard A. Hull is not vested because testator made provision for a gift over in the event of his dying without issue before the life tenant, and the remainder to Eobert B. Hull is not vested both because of the gift over to his issue in the event of his death without issue prior to the termination of the life estate, and also because of the liability of the remainder being defeated by the death of the life tenant before the death of Eichard A. Hull. An illustration of the latter condition, given by Washburn (2 Washb. Beal Prop. (Ifth ed.) 5p8, *228), is as follows: “If the limitation be to A for life, remainder to B, B has the capacity to take this at any moment when A may die.” B therefore has a vested remainder. “But if it had been to A for life, remainder to B after the death of J. S., and J. S. is still living, B can have no capacity to take till J. S. dies.” B’s remainder is, therefore, contingent. At the death of Eichard A. Hull without issue before the termination of the life estate and prior to the death of Eobert B. Hull, the latter’s interest would have become a vested remainder but for the limitation over to his issue. As a vested remainder is subject to alienation and a contingent remainder is not, the-will of Eobert B. Hull is ineffective to vest an interest in the trust created by the will of Caroline C. Hull. I will advise a decree directing the trustees to make distribution of the one-third of the trust property now in question in the manner in which it would be distributed had Caroline C. Hull died intestate.