The majority opinion is based upon the assumption that the interest of George Steedman in the lands levied upon is at most a contingent remainder. I think it is a vested remainder.
1. Our statutes do not define vested and contingent remainder, though they refer to them. 60 O. S. 1941, ch. 2. We must look, then, to the general law for the distinctions.
In Black's Law Dictionary (3d Ed.) a vested remainder is defined as one "limited to a certain person at a certain time or upon the happening of a necessary event", and a contingent remainder is defined as one "limited to take effect to a dubious and uncertain person, or upon a dubious and uncertain event." Similar definitions may be found in many cases and text books. See 23 Rawle C. L. 497, 499; 33 Am. Jur. 525, 529; 21 C. J. 980, 981; 31 C.J.S. 88, 90. A vested remainder is an esstate, *Page 160 while a contingent remainder is not an estate but is a mere possibility or prospect of an estate. Simes, Law of Future Interests in Land, § 68; Tiffany, Real Property (3d Ed.) § 325; 23 Rawle C. L. 500; 33 Am. Jur. 527, 530; 21 C. J. 979, 984; 31 C.J.S. 88, 91.
There are three classes of vested remainders, (a) those absolutely vested, (b) those subject to being partly divested by opening and letting in other remaindermen, and (c) those subject to being completely divested. Simes, § 57; Restatement, Property, § 157; Tiffany, § 319.
The remainder here is either a contingent remainder or a vested remainder of the third class — one subject to complete defeasance. The difference between the two, broadly speaking, is stated in an annotation on the subject in 131 A. L. R. 712, as follows: "If the condition on which the estate depends is precedent, the estate is contingent; if subsequent, it is vested, subject to defeasance." To the same effect, see 23 Rawle C. L. 509, § 43; 33 Am. Jur. 544, § 88; Page on Wills (2d Ed.) § 1116.
In case of doubt the courts will, where possible, construe a remainder to be vested rather than contingent, and they favor a construction that will make the remainder vest at the earliest possible date. 21 C. J. 995; 31 C.J.S. 96; 23 Rawle C. L. 521; 33 Am. Jur. 558; Simes, § 93; Gray, The Rule against Perpetuities (4th Ed.) § 752.
The interest of George Steedman in the lands fits the definition of a vested remainder and not that of a contingent remainder as stated by Black, above. The three remaindermen, children of testator, are "certain persons". The event which entitles them to come into possession of the estate is a "necessary event." Their mother is certain to die, and eleven years are certain to elapse after her death. It would seem, then, that the remainder interest should be considered vested unless the other provisions of the will clearly indicate that the testator intended it to be contingent. The fact that the remaindermen are expressly given the right to dispose of their interest, either by grant or will, so that the grantee or beneficiary under the remainderman's will would have an absolutely vested interest, thus rendering the other conditions inapplicable, is indicative of an intention on the part of the testator that interest of the three children shall be vested rather than contingent. I do not believe that any of the provisions establish an intention on the part of testator that the remainder interests be contingent.
a. The will gives the trustee power to sell the property and to reinvest the proceeds and to hold the same subject to the terms of the trust. But, the rule seems to be universal that a remainder is not rendered contingent by a power given the life tenant, executor or trustee to dispose of the property either by grant or by will. Simes, § 80; Tiffany, § 319; Restatement, Property, § 157 and comments under clause (c); 131 A. L. R. 712, at 715, annotation; 21 C.J. 981; 69 C. J. 625, § 1717; 31 C.J.S. 90; 23 Rawle C. L. 511; 33 Am. Jur. 545.
b. The intention of the testator that there shall not be a present vesting of the remainder in the three named children of testator is not shown by the fact that the will merely directs the trustee to "pay over and deliver" the property to the children at the termination of the particular estate in the trustee, under the "divide and pay over" rule, especially when other provisions, such as those giving the three children the right to dispose of their interests, are taken into consideration. Koelliker v. Denkinger, 148 Kan. 503, 83 P.2d 703, 119 A. L. R. 1; Restatement, Property, § 260; 33 Am. Jur. 571; 69 C. J. 628, § 1721. The courts favor holding an estate vested under the "divide and pay over" rule where the remainder is given to named persons who are the natural objects of the bounty of testator, such as his children. 128 A. L. R. 309, annotation. And where the postponement of distribution is for the convenience of the estate so as to let in *Page 161 some other interest or, as here, to pay an annuity to the life tenant, and not because of the incapacity of the remainderman, as in case of a spendthrift trust, it is said that the immediate vesting in the remaindermen is not prevented by the postponement under the "divide and pay over" rule. 33 Am. Jur. 570; 69 C. J. 630.
c. The present vesting in the three named children of testator is not prevented by the fact that, in the fifth paragraph of the will, it is provided that the interest of any of the named remaindermen, who may be deceased at the time the particular trust estate shall cease, shall go to his or her living issue, provided such remainderman shall not have sold or willed away his or her remainder interest, nor by the fact that if such remainderman shall die intestate, without issue and without having disposed of his or her remainder interest, and none of testator's children are then living, the share of such deceased remainderman shall go to the then heirs at law of the testator. These are conditions subsequent. 69 C. J. 632-637; Annotations, 109 A. L. R. 5 and 136, and 128 A. L. R. 306. However, the interest of the issue of the remainderman or thethen heirs of the testator would probably be contingent.
The direction to pay over and deliver the interests at the expiration of eleven years after the death of the widow to testator's "then living children" refers to the possession and enjoyment of the property and does not mean that until that time the remainder interests of the three named children are contingent. This is another way of saying that if a remainderman has died prior to the time when the precedent trust estate shall cease, the interest of the deceased remainderman shall go in the manner directed in the will.
d. The present vesting of the remainder interest is not prevented by the fact that the particular limited esstate is vested in a trustee. The remainder interest does not vest in the trustee at all. See 23 Rawle C. L. 508, 529; 33 Am. Jur. 564; 65 C. J. 541. As to such remainder interest, the trustee simply holds a power in trust. 60 O. S. 1941 §§ 190, 191; Simes, § 252; 41 Am. Jur. 808.
While authorities may be found to support any position that may be taken on some of the questions above mentioned, I think the view supported by the better and more recent authorities is that the interest of the three named children of testator is a vested remainder subject to complete defeasance by the happenings of conditions subsequent, such as sale of the property by the executor to pay the debts of testator, or sale by the trustee under the power given in the will, or death of a remainderman intestate and without issue and without having conveyed his interest. A careful study of the cases cited in the majority opinion convinces me that they do not support the conclusion reached.
2. The next question is whether a vested remainder subject to complete defeasance constitutes "lands and tenements" such as may be levied upon and sold under a general execution, as provided in 12 O. S. 1941 §§ 733, 751.
The plaintiff does not argue, and the majority opinion does not hold, that such a remainder interest may not be so levied upon and sold. The authorities seem to be practically unanimous that such an interest may be sold on execution. However, I find no decision by this court on the precise question. In Bierschenk v. Klein, 183 Okla. 494, 83 P.2d 371, we held that the interest of an heir, subject to a life estate in decedent's widow and subject to mortgage liens (an interest similar to such a vested remainder), was subject to levy and sale under execution as provided in 12 O. S. 1941 § 733. In Whitmore v. Smith, 94 Okla. 90, 221 P. 775, this court held that the remainder interest there involved was vested and could be alienated by the remainderman.
There are three well established general rules which are pertinent: (a) *Page 162 All interests in land, which are real and substantial, which constitute lands, tenements and hereditaments, which are vested and are not mere expectancies, which are not by express statutory enactment rendered exempt, and which the owner may voluntarily convey, are subject to levy and sale on execution to satisfy the owner's debts (17 Rawle C. L. 118; 21 Am. Jur. 185; 23 C. J. 335; 33 C.J.S. 167; Freeman on Executions (3rd Ed..) § 373; (b) the vested interest of a devisee or heir in lands, which is the present interest of George Steedman, is subject to levy and sale on execution to pay his debts before the estate is settled and closed by the probate court (Brett v. Fielder,136 Okla. 222, 277 P. 216; 17 Rawle C. L. 164; 21 Am. Jur. 209; 23 C.J. 360; 33 C.J.S. 181; Freeman on Executions (3rd Ed.) § 183; and, (c) a vested remainder in land is subject to levy and sale on execution to satisfy the debts of the remainderman, even during the continuance of the preceding estate. 17 R.C.L. 119; 23 R.C. L. 577; 21 Am. Jur. 206; 23 C. J. 335; 33 C.J.S. 168; Thompson, Real Property (Perm. Ed.) § 2233; Tiffany, Real Property (3rd Ed.) § 340; Simes, Law of Future Interests, § 736; Freeman on Executions (3rd Ed.) § 178.
The case of Ducker v. Burnham, 146 Ill. 9, 34 N.E. 558, 37 Am. St. Rep. 135, a leading case both on the nature of the estate and its being subject to sale on execution which has been many times cited with approval, is in point. The material facts and holding are briefly stated in the headnotes to the Northeastern citation, as follows:
"1. A devise to the testator's wife for life, with power to sell and dispose of the property, remainder in fee to testator's children, named in the will, followed by a provision that, if any of such named children die before the wife, then the property is to be equally divided between the survivors, creates a vested remainder, subject to a condition subsequent.
"2. A vested estate in remainder is subject to levy and sale under execution."
The Illinois statute authorized the sale on execution of "lands, tenements, real estate, goods and chattels."
In Caples v. Ward, 107 Tex. 341, 179 S.W. 856, the testator devised his estate to his wife for life with remainder equally to his five named children, with direction that upon the death of his wife the estate be divided equally "between all of my above-named five children then living, or their descendants," with power in the wife, with consent of a majority of the children, to sell, convey or incumber any part of the estate. The court held that the interest of the children, during the lifetime of the wife, was a vested remainder subject to complete defeasance, and was subject to sale on execution to satisfy a judgment against the remainderman. The Texas statute authorized the sale on execution of "real estate" and "lands". The case is in point here.
Markham v. Waterman, 105 Kan. 93, 181 P. 621, is also in point. There the testator devised his property to his wife as the "real owner" and with "complete control" of his property, and directed that after her death the property should be divided equally between his "children or their heirs." The court held that the widow took a life estate with power of disposition, that the children took a vested remainder subject to complete defeasance, that such remainder interest could be sold by the remainderman, and consequently it could be sold by the sheriff to pay his debts, and that it passed to the trustee in bankruptcy of the estate of the remainderman. We took our statute, 12 O. S. 1941 §§ 733, 751, from Kansas.
The fact that the trustee has the power to sell the property does not mean that the interest of the remaindermen or of the purchaser at the execution sale would lose his right by the sale. The will gives the trustee the right to pay to the widow, and to the three children for eleven years after her death, the income only of the property. The corpus of the estate is to be preserved and, regardless of its form, is subject to the *Page 163 provisions of the trust. The purchaser at the execution sale, like the remainderman, would be entitled to follow the trust property. Page on Wills (2d Ed.) § 990; 69 C. J. 568; Olson v. Weber, 194 Iowa 512, 187 N.W. 465, 27 A. L. R. 1370. It follows that the purchaser at the execution sale would step into the shoes of the remainderman and would get more than a shadow.
I am, therefore, of the opinion that the interest in the land here involved is subject to sale on execution. However, the purchaser would get only the same interest and rights in the property as George Steedman owns, and would take it subject to the valid terms of the will and the powers given the plaintiff as executor and trustee. Whitmore v. Smith, 94 Okla. 90,221 P. 775; Markham v. Watterman (Kan.), above; Simes, § 719; Restatement, Property, § 166. And the sale under execution would no more cloud the title of the trustee than would a sale by the remainderman, nor would the purchaser be in any better position to interfere with the trustee in carrying out his powers and duties than would the remainderman or his grantee or devisee. The trustee would not, therefore, suffer irreparable injury or prejudice by the sale of the interest in the land so as to entitle him to injunctive relief.
3. The final question is whether the interest of George Steedman as cestui que trust in the trust estate — a chose in action as distinguished from his interest in the land — has been levied upon, and, if so, whether it can be sold under the execution. Appellant states that such interest has not been levied upon, while the appellees contend to the contrary. It will be observed that the return refers to the one-third beneficial interest of George Steedman in the "trust therein created". I believe this is in addition to his interest as remainderman in the land. The appellees contend that such an interest or chose in action is subject to levy under a general execution, and cite 60 O. S. 1941 §§ 146, 298, and 23 C. J. 343.
Section 146 has reference to the title of the beneficiary of a trust in land. The Corpus Juris citation, relied upon, has reference to a passive trust in land. These authorities are, therefore, not in point. Section 298 provides:
"The execution, in whole or in part, of any trust power, may be adjudged for the benefit of the creditors or assignees of any person entitled, as one of the beneficiaries of the trust, to compel its execution, when his interest is transferable."
This section does not have reference to a general execution. Rather, it has reference to a special proceeding in the court having jurisdiction of the trust estate that has for its purpose the execution or enforcement of the trust power in favor of creditors or assignees of a beneficiary when the interest of the beneficiary is transferable. Such a chose in action does not constitute "lands, tenements, goods and chattels" that may be levied upon under 12 O. S. 1941 §§ 733, 751, but the remedy of the creditors of the beneficiary is by a special proceeding in the court that has jurisdiction over the trust estate under authority of section 298, above, and under authority of 12 O. S. 1941 § 841. See Melish Consol. Placer Oil Mining Ass'n in Red River v. Burk-Senator Oil Co.,163 Okla. 20, 20 P.2d 879.
For the foregoing reasons, I dissent insofar as the majority holds that the interest of the three children in the land is not subject to sale on execution, and I agree that the interest in the trust estate as such (a chose in action) is not subject to sale on execution. *Page 164