Savage v. Pike

By the Court, Clerke, J.

Francis Child, by his will, executed in 1826, after giving and bequeathing to his wife, for the term of her natural life, the rents, issues and profits of all his estate, real and personal, devised and bequeathed one fourth of it to his daughter J ane, afterwards Mrs. Eeed, with remainder to her issue, and, on failure of her issue, he devised and bequeathed the remainder to the rest of his children in fee. The language is, after giving her the one fourth of his estate, during the term of her natural life, “and upon the decease of my said daughter J ane, I do give devise, and bequeath the said last mentioned one equal fourth part of all my estate, both real and personal, unto the lawful issue of my said daughter Jane, his, her or their heirs, executors, administrators and assigns, forever, equally to be divided among them ; and, in case my said daughter Jane shall not leave lawful issue, or such issue, if any, shall die under the age of twenty-one years, without leaving lawful issue, then, and in such case, I do give, devise and bequeath the said last mentioned one equal fourth part of all my estate, both real and personal, unto the rest of my children, their heirs, executors, administrators and assigns, forever, equally to be divided among them.”

At the death of the testator, in October, 1834, there were four children living and taking under the will; his son Abraham and three married daughters, the said Jane Eeed, Car-line Frances Savage and Mary Parsons. Mrs. Savage died in 1843, leaving two children, Josephine W. Pilce and Caroline F. Mcllvaine. Abraham, the son, died without issue, in 1844, and Mrs. Parsons died in 1847, leaving one child, Josephine Parsons. Mrs. Eeed, with whose share of her father’s estate we are alone concerned in this case, died in 1861, without issue, leaving, as we may perceive from the foregoing statement, as her heirs at law and next of kin, Josejthine W. Pike and Caroline F. Mcllvaine, the children of her deceased sister, Mrs. Savage, and Josephine Parsons, the child of her deceased sister, Mrs. Parsons.

The only question which has been submitted, remaining for our consideration, is, whether these nieces of Mrs. Eeed took the one fourth part of her father’s estate which was given to her during her life, as heirs at law of their grandfather; or whether they took it by virtue of the latter portion of that clause in his will in which he made the provision for Mrs. Eeed, during the term of her natural life. If these granddaughters of Francis Child, and nieces of Mrs. Eeed, took as heirs of the former, then they would take equally, as of equal degree of consanguinity to the ancestor, whose estate they inherited. On the other hand, if they take by virtue of the provision in the will to which I have referred, the children of •Mrs. Savage, Josephine and Caroline, together take one half, each one fourth, and the child of Mrs. Parsons, Josephine, takes one half. So the question is, shall the former have each one fourth, or each one third; and the latter one third, or one half ?

The counsel for the former, in a very elaborate brief, endeavors to maintain that l^hey take as heirs ; because the limitation over after the life estate is not a vested remainder, but is either a contingent remainder or an executory devise, and therefore, he contends, not descendible.

If the law had never been changed, on this subject—if the multitude of rules, arbitrary and technical, with the subtleties and refinements into which, in the course of centuries, they had been spun out and divided, still continued in full force, perhaps the research and argument of the counsel would have some applicability to this case. But all this has been abolished; and a system almost entirely new has been substituted for it.

I am ready to agree with the counsel for the children of Mrs. Savage, that the limitation over, in the clause referred to, is not a vested remainder; although I consider it an error to suppose that, even by the common law, all contingent remainders are not descendible and devisable.

The limitation over, now under consideration, answers, precisely, to the example of contingencies with a double aspect given by the revisers in their notes; hut which, they say, “with great propriety and more simply, may he termed alternate estates.” The example which they give, is where an estate is given to A. for life, and, if he have any issue living at his death, then to such issue in fee; hut if he die without such issue, then to B, in fee. “ Here the remainder,” they add, “to the issue and to B. are both contingent, but only one can take effect.” (3 R. S. 573, edition of 1836.) This corresponds, exactly, with the limitation over in this will; except - that j)ortion of it relating to the death of Mrs. Reed’s issue under the age of twenty-one years, without leaving lawful issue. As I have shown, in a legal manual which I compiled many years ago, the definition of a vested remainder by the revisers was inadequate, (to use a term of the .logicians,) and would correspond with the example of a contingent remainder, which I have just quoted from the reviser's notes. (See Clerke’s Rudiments, preface VII, and text, 85.) But whether we consider this limitation over as a vested remainder, or an executory devise, it is equally descendible. It constitutes an expectant estate, which term, by the Revised Statutes, embraces all kinds of future estates and reversions, (1 R. S. 723, § 9, marginal;) and it is expressly declared that “ all expectant estates are descendible, devisable and alienable, in the same manner as estates in possession.” (1 R. S. 725, § 35, marginal.) The limitation over, then, is effectual to whatever class of future estates it belongs; and these three nieces of Mrs. Reed take by virtue of it; the children of Mrs. Savage being entitled to one half, each one fourth, and the child of Mrs. Parsons to one half.

[New York General Term, January 2, 1866.

The judgment of the special term should he affirmed, with costs.

Geo. G. Barnard, Clerke and Ingraham, Justices.]