I am unable to agree with the majority of the court in their construction of the interest given to the grandchildren of the testatrix. That interest is defined in the majority opinion to be that of concurrent life estates in joint tenancy with a power of appointment of the remainder in the survivor of the class. It will be observed that there is not one class, but two, each class consisting of the child or children of a daughter of the testatrix. The *Page 226 majority recognize this but do not consider it of significance in determining the plan of the will.
The proper construction, I believe, is that each class of grandchildren took remainders in severalty and not as joint tenants. Since there were grandchildren of each class in esse at the time the will took effect, it follows that the remainders were vested in them subject to being divested in part as other grandchildren of testatrix were born, Adams v. Ross,30 N.J.L. 505, 513 (E. A. 1860), an event which never happened. That the remainders were for life only and not in fee does not alter the situation. Such estates in remainder for life have been recognized as valid and vested estates. 2 Bl. Com. [*]164; 2 Reeves, Real Prop. (1909) 1155; 3 Walsh,Commentaries on the Law of Property (1947), p. 92. An example of such a remainder is to be found in Adams v. Ross, supra. The sole significance of the fact that the remainder is for life is that the actual enjoyment of the estate is uncertain. But, as the authorities specifically point out it is the uncertainty of theright to enjoyment the instant the particular estate determines that makes a remainder vested or contingent. Cody v.Fitzgerald, 2 N.J. 93 (Sup. Ct. 1949); Hopper v. Gurtman,126 N.J.L. 263, 272 (E. A. 1940); King v. First NationalBank of Morristown, 135 N.J. Eq. 319, 323 (Ch. 1944).
The opinion of the majority fails to distinguish between the normal termination of any life estate and a joint tenancy. The concept of a class gift is not dependent upon the quality of the estate created. Simes, Future Interests (1936), § 369; 57 Am.Jur., "Wills," § 1257, p. 830; Restatement, Property c. 22,pp. 1445-1447. The real question is whether testatrix intended the power to be exercised by the longest liver of the class or intended each member to have the power.
The opinion of the court relies upon Camden Trust Co. v.Birch, 131 N.J. Eq. 542 (Ch. 1942), and Noe's Adm'rs v.Miller's Ex'rs, 31 N.J. Eq. 234 (Ch. 1879), as authorities for the decision that the remainders are held in joint tenancy. Passing by the fact that both of these cases are in the former Court of Chancery and hence are not binding upon us as *Page 227 precedents, an examination of the Noe case, upon which theCamden Trust Co. case depends, reveals that it does not involve a true class gift but a gift to a mother and her children, involving an example of the rule in Wild's Case, 6 Coke 16b, 1 E. Cas. Abr. 181 (1599). The import of the decision in theNoe case is that R.S. 46:3-17, which altered the common law presumption that a gift to two or more persons is presumed to be a joint tenancy does not apply to personal property. I do not believe the Noe case to be an authority herein, for the reasons already expressed; but if it is so considered, it is to be remarked that the court pointed out (at p. 236) "slight evidence to confer distinct interest will operate as a severance, and the legatee will take as tenants in common." In the instant case there is more than "slight evidence" to show an intent to bestow the gift in severalty. To cite but one example the testatrix directed that should both of her children predecease their father, he was to have the power of disposal of the principal, "the issue of a deceased child nevertheless in any case to take the parent's share." Such a gift is a gift in severalty to such descendants as will take the estate under the laws of descent and distribution. Hoyt v. Orcutt, 1 N.J. 454 (Sup. Ct. 1949); Redmond v. New Jersey Historical Society,132 N.J. Eq. 464, 471 (E. A. 1942); 3 Walsh, op. cit., § 319, pp. 255 et seq. The majority opinion does not give effect to this clause and holds the interests to be joint. This results in the grandchildren's interest being joint under one set of circumstances, namely, if the daughters of testatrix survived their father, but several under another set of circumstances, namely, if the daughters of the testatrix predeceased their father. It is unlikely that the testatrix intended this inconsistency.
Since my construction results in each grandchild having a power of disposal of a share of the principal, it follows that the Rule against Perpetuities was not violated as to those grandchildrenin esse when the will took effect. In this respect the case ofCamden Safe Deposit Trust Co. v. Scott, 121 N.J. Eq. 366 (E. A. 1937), was in error in failing to distinguish between those grandchildren in esse when the *Page 228 will took effect and those born afterwards. See Gray,Perpetuities (4th ed. 1942) p. 411 n. 3 and p. 472, n. 2, criticising the case. It should be overruled in part in this respect with the result that in the instant case each grandchild had a valid power inasmuch as they were all in esse when the will took effect.
The case of In re Hargreaves, 43 Ch. Div. 401 (BritishCourt of Appeal, 1890), relied on by the majority does not support the majority in the instant case. The will there under construction clearly gave a power of appointment to "the longestliver of them my said sisters Mary and Eliza and their children." (Emphasis supplied.) I believe the Hargreaves case demonstrates what is necessary to incorporate in a will in order to arrive at the result the majority in the instant case reached by interpretation.
Since under this construction each grandchild was given a power of appointment over a portion of the principal, with no gift over in default of appointment, it follows that upon the death of a grandchild failing to exercise the power the testatrix died intestate as to that portion. In this respect it becomes necessary to obtain proof of the execution of the will of Albert Alexander Kingsland who died in 1923 leaving a purported will attempting to exercise this power. Proofs should be received and a decision should be made as to the validity vel non of this will. For instance it does not appear from the record to have been executed in compliance with the law of this State, R.S. 3:2-3. If not its deficiencies should be ascertained. No opinion is expressed as to whether they are such that equity will aid them. Refer to Clapp, Wills and Administration in New Jersey (1937), p. 323.
There is another question not raised either in the court below or in this court which calls for critical examination on a rehearing. It clearly appears from the context of the clause under construction, where it is mentioned twice therein, that a portion of the trust estate established was composed of property over which the testatrix exercised a power of appointment by the will of her father. Just what effect this question will have upon the estate cannot be determined from the *Page 229 present state of the record. It may well be that as to that portion the gift to the grandchildren both of the power and the remainder for life would be void unless the grandchildren werein esse at the death of the father. Refer to Camden SafeDeposit Trust Co. v. Scott, supra, at p. 375. The facts essential to the disposition of this question should be determined regardless of whether it was in issue below or not. Compare Scott v. Stewart, 1 N.J. 60.
I would reverse the decree and remand the cause for further proceedings consistent herewith.
Mr. Justice Heher authorizes me to say that he agrees with the views expressed herein.
For modification — Chief Justice VANDERBILT, and Justices CASE, WACHENFELD and ACKERSON — 4.
For reversal — Justices HEHER and BURLING — 2.