The foregoing statement of the ruling appealed from is suggestive of simplicity, but it furnishes no indication of the question actually litigated between the parties. As ground for dissolving the attachment, the defendant asserted in his motion, and the court held, that he had no other interest in the real estate attached than that of the contingent remainder under the will of Joseph Boiler, deceased. The resisting contention of the plaintiff was that the defendant had a vested interest in said land, under the will of Joseph Boiler, though conceding it to be subject to defeasance by condition subsequent. In his motion to dissolve, the defendant incorporated Paragraph 7 of the will of Joseph Boiler, as follows:
"The above mentioned devisees Chester D. Boiler, Nora Ella Boiler, Ada A. Boiler and Nettie A. Wilson, formerly Nettie A. Boiler, being my only children, it is my further will that at the death of either of them, the specific real property to each one above devised shall descend to the child or children of each individual devisee in fee simple, share and share alike, but if at the time of the decease of either of my said children, devisees aforesaid, they have no surviving children then and in that case it is my will that the specified real property shall descend to my remaining surviving children, above mentioned, in fee simple, share and share alike. Provided, however, that in case any one of my said children aforesaid shall have previously died leaving a child or children surviving them, then and in that case it is my will that said child or children shall take in equal shares as representatives of their deceased parents."
In sustaining the motion, the district court found, as a conclusion of fact and law, that the defendant held only a contingent remainder in the land, and that the same was not subject to judicial sale. Incorporated in the order sustaining the motion to dissolve, and likewise in the judgment entry, was the further proviso "that no execution, either general or special, shall issue against said land, or any part thereof; and it is further ordered, adjudged, and decreed that said land, nor any part thereof, shall not be sold under general or special execution, so long as defendant's interest therein shall remain a contingent remainder."
It will be noted that the appeal is simply from an order dissolving an attachment in a law action. Whether the order is *Page 528 appealable, is a question of doubt in our mind. The plaintiff has his personal judgment, and his lien is equal to that of an attachment. The question whether the attachment should have been dissolved, has doubtless become moot. At least 1. WILLS: there is nothing in the record to indicate that construc- the order of the court in dissolving the tion: attachment has worked any prejudice to the remainder: plaintiff. In view, however, of the broad scope contingent of the order, as entered, and that the parties (?) or are mutually presenting the issue upon the vested (?) question whether the defendant has a vested remainder or only a contingent one, we proceed to the consideration of that question.
I. We have already set forth Paragraph 7 of the will of Joseph Boiler. It should further be noted that, by Paragraphs 2, 3, 4, and 5 of such will, Joseph Boiler devised to each of his four children a life estate in certain parcels of land specifically described. The quantity thus devised severally to each of his children was approximately 900 acres. The lands attached herein were devised for life by Paragraph 5 to the daughter Nettie Wilson, who is the mother of this defendant. It appears that the testator died in 1900; that, at that time, the defendant Wilson was the only child of the daughter Nettie Wilson; that since said date two other children have been born to her, and are now living; that no child has been yet born to any other of the children of the testator. Paragraph 7 is to be read in the light of these facts. It will be noted that, by Paragraph 7, the remainder is devised to the "surviving children," if any, of the life tenant at the time of her death; if no child of the life tenant survive her, then to the surviving children of the testator and to the children of those deceased. The district court held that the remainder thus devised to this defendant, as the child of Nettie Wilson, was a contingent one. Such holding is supported by our following cases: Williamson v. Youngs, 200 Iowa 672; In re Will of Wolber, 194 Iowa 311; Sutherland v. Green,191 Iowa 711; Horner v. Haase, 177 Iowa 115; Baker v. Hibbs, 167 Iowa 174; Birdsall v. Birdsall, 157 Iowa 363.
In Williamson v. Youngs, supra, the remainder under consideration was devised by substitution to the issue of the life tenant's predeceased child. In In re Will of Wolber, supra, it was likewise to the issue of the life tenant's predeceased child. In *Page 529 Sutherland v. Green, supra, it was to the "surviving children" of the life tenant. In Horner v. Haase, supra, it was to the children "living" at the time of death of life tenant, and to the issue of deceased children. In Birdsall v. Birdsall, it was to the children of the life tenant "then living," and to the issue of those deceased. Pursuant to our former holdings, therefore, the district court properly held the remainder to be contingent.
II. It remains to consider the question whether a contingent remainder is subject to seizure and judicial sale in favor of a creditor. It is the contention of the appellant that all interest in land, whether contingent or otherwise, as a 2. REMAINDERS: general rule, is subject to seizure and sale on contingent general execution. 23 Corpus Juris 335. The remainders: argument is that a contingent remainder is attachment alienable by the voluntary contract of the or execution remainderman, and that, therefore, it must levy. necessarily be subject to execution. Such is the holding in some jurisdictions. White v. McPheeters, 75 Mo. 286;DeHaas v. Bunn, 2 Pa. St. 335 (44 Am. Dec. 201); Wood v. Watson,20 R.I. 223 (37 A. 1030). Some of these holdings are predicated upon statutory provisions.
It is doubtless true in this state that a voluntary contract by a contingent remainderman to convey his interest may, after the vesting, be enforced in equity as an executory contract. Such enforcement, however, is predicated to some extent upon equitable grounds, such as the receipt of consideration and benefit, which are deemed binding upon the conscience of the chancellor and of the litigants. It is true also that, if the contingent remainderman sells with a covenant of warranty, such warranty becomes effective, under the statute, to carry to the purchaser the future acquisition of the seller by the vesting of his remainder. It does not necessarily follow, however, that a legal transfer of such contingent remainder may be obtained by an execution sale. Ordinarily, the rights acquired by an execution-purchaser are legal, rather than equitable. We have twice had the question under consideration, without making a very definite pronouncement thereon. Taylor v. Taylor, 118 Iowa 407;McDonald v. Bayard Sav. Bank, 123 Iowa 413. In the Taylor case we said:
"Under our statute, judgments `are liens upon the real estate owned by defendants' (Section 3801, Code), and real estate *Page 530 `includes lands, tenements, hereditaments, and all rights thereto and interests therein' (Paragraph 8, Section 48, Code). These sections contemplate a present tangible right to or interest in the land: that is, it must be owned by the judgment defendant at the very time the lien is claimed to have attached. The evolution of the law concerning the assignability of contingent remainders need only be referred to. It is enough to say that they are now generally held assignable. Miller v. Emans, 19 N.Y. 384;Bodenhamer v. Welch, 89 N.C. 81. The possible exception is where the uncertainty is with respect to the person. Such a transfer, it seems, will not be upheld in law, though often sustained in equity. It is not a possibility coupled with an interest. 4 Kent, Commentaries, 252. No one can be said to own it. Several may have the chance of acquiring it. Any right the remainderman may have is said to be in abeyance. Says Mr. Washburn, in his work on Real Property: `For a long time a contingent remainder was not supposed to be the subject of alienation, because it was rather the possibility of an estate, like the possibility of an heir at law, for instance, having the estate when his ancestor shall have died. But it is now settled that, when the contingency upon which the remainder is to vest is not in respect to the person, but the event, when the person is ascertained who is to take if the event happens, the remainder may be granted or devised, and the grantee or devisee will come into the place of the grantor or devisor, with his chance of having the estate. But if the contingency is in the person who is to take, — as where the remainder is limited to the heirs of one now alive, — there is no one who can make an effectual grant or devise of the remainder.' As the statute refers to a present interest in land, and F.M. Taylor had but the probability of acquiring it, nothing passed under the execution sale. Where the possibility is coupled with an interest, as in White v. McPheeters, 75 Mo. 286, a different rule may obtain. The statute of that state is as broad as our own, and, as the uncertainty was not as to whether McPheeters would be the taker, but whether the life tenant would die first, the contingent remainder was found subject to the lien of the judgment. Unless he took, no remainder was provided, as the land would, under the terms of the will, in that event, go to the life tenant. The uncertainty, then, was not as to the person, but the event. The case of Young v. Young, *Page 531 89 Va. 675 (17 S.E. Rep. 470, 23 L.R.A. 642), is somewhat in point. There the devise was to Ann Porter Young for life, with remainder in fee to such of her issue as might be living at her death. Judgment in rem was obtained against one of her children, Robert W. Young, a nonresident, before the death of the life tenant, through a writ of attachment levied on the land; and the court held that this was before the remainder vested in said Young, `and while he had no interest in said property which could be subjected to a lien of attachment. In the opinion of this court, the words "estate or debts" due him "within the county or corporation in which the suit is," in Section 1, Chapter 148, Code Va. 1873, were not intended to apply to a mere possibility, such as the said R.W. Young had at the time the said attachment was sued out.' See note to this case in 23 L.R.A. 642. And, where the uncertainty is as to the taker, the remainder, although an assignment of it may be enforced in equity, was held not subject to execution, in Watson v. Dodd, 68 N.C. 528, the court remarking that `it is clear that such a possibility would sell for little or nothing, as no one would bid except the holder of the first estate, for the purpose of extinguishing the limitation.' See, also, 2 Freeman, Executions (3d Ed.), Section 278; Haward v.Peavey, 128 Ill. 431 (21 N.E. Rep. 503, 15 Am. St. Rep. 120);Harrington v. Sharp, 1 G. Greene 131. The decisions of New York are based on statutes peculiar to that state. See Moore v.Littel, 41 N.Y. 66. We are inclined to the view that, where the uncertainty of a contingent remainder involves solely the question of who shall take the real estate, it is not, before vesting, the subject of levy and sale under execution."
In McDonald v. Bayard Sav. Bank, 123 Iowa 413, we held definitely that a contingent remainderman could legally convey or relinquish his interest as such to a party in interest. We predicated this holding both upon our statute and upon the authority of precedent. We said:
"While we are satisfied that the conclusion which we have reached under the statute is correct, there is still another line of authorities announcing a rule which commends itself to our judgment as sound, and which we think somewhat analogous to the construction placed upon the statute. It is the rule that a possibility, `not being a bare expectancy, but having a *Page 532 foundation and original inception of right,' may be released to a party in interest, though not to a stranger. Williams on Real Property [6th Ed.] 277."
As to the particular question now before us, we said in that case:
"In Taylor v. Taylor, 118 Iowa 407, the questions were as to the character of the interest of the judgment debtor in the land, and whether a contingent interest in land was subject to a levy and sale under execution. We held that it was not, because of sections of the statute creating liens upon and defining real estate contemplate a `present, tangible right to or interest in the land: that is, it must be owned by the judgment defendant at the very time the lien is claimed to have attached.' There was no question in the case as to whether a contingent interest might be voluntarily conveyed under the statute, and our conclusion here in no way contravenes the holding there."
In that case, we construed the Taylor case as holding that a contingent remainder in land is not subject to execution sale. In the case at bar, the contingency involved does render uncertain the person who will take the fee at the time of death of Nettie Wilson. The uncertainty is which, if any, of these three children will survive the life tenant. Clearly, it was the rule of common law that contingent remainder could not be subjected to sale on execution. This rule still obtains in many jurisdictions. One of the prominent reasons for such a holding is that the sale and purchase of such an interest becomes a mere gamble, and is oppressive in its nature, and tends to a thwarting of the will of the testator.
Pursuant to our holding in the Taylor case, we must now hold that a mere contingent remainder is not subject to sale on execution. In support of our foregoing holding is our former pronouncement, somewhat in the nature of dictum, in Fulton v.Fulton, 179 Iowa 948, 966, and 967, as follows:
"The right to suspend the power of alienation for a limited time is a right permitted to the testator, under our statute. Many testators desire to avail themselves of this right. To the mind of the testator, it is often a method of conserving the devise to the real benefit of the devisee. A vested remainder is *Page 533 alienable; a contingent remainder is inalienable. The effect of the New York rule, as applied in some cases, is to reduce the right of the testator to suspend to some extent the power of alienation. The remainder contingent at common law is held to be vested, under the New York rule, in order to subject it to alienation by the devisee and to seizure upon execution against him; and this even though such vested remainder be subject to defeasance by a condition subsequent. When it is considered that the sale or purchase of such an estate subject to defeasance amounts ordinarily to a mere wager, and is in the nature of an act of waste and dissipation of the estate before its enjoyment has begun under the terms of the will, and when it is considered further that the suspension of the power of alienation is a matter wholly of legislative cognizance, and that legislative permission is had for such suspension for a limited time, there is no very persuasive reason apparent why a mere judicial presumption should be created to run counter to such legislation. And this is only another way of repeating that the intent of the testator must govern, subject only to the statute against perpetuities. Nor should it be deemed a quasi offense against such statute that the testator has availed himself of its permission."
The judgment of the district court is, accordingly, —Affirmed.
De GRAFF and ALBERT, JJ., dissent.
MORLING, J., not participating.
All the other justices concur.