The will before us creates an executory devise in favor of Charles R. Ingersoll, his enjoyment of which was dependent upon his surviving Miss Linzee, and an executory devise in favor of Suzette L. and Justine H. Ingersoll, whose enjoyment of which would be defeated by his surviving her. *Page 410
Executory devises of personal property and contingent remainders are governed by the same rules, so far as concerns their alienation or transmission. 2 Redfield on Wills, [*]271;St. John v. Dann, 66 Conn. 401, 409. Upon the death of one in whose favor either may have been created, although the contingency has not occurred on which his right to ultimate enjoyment may depend, it will form part of his estate, unless his survival until the termination of the prior estate is a condition of his taking any benefit from it, and a condition precedent. 4 Kent's Comm., 261; Hawkins on the Construction of Wills, [*]223; Johnson v. Edmond, 65 Conn. 492,499; Mallory v. Mallory, 72 id. 494; Security Co. v.Hardenburgh, 53 id. 169; Fearne on Contingent Remainders, 444, 445, 554; Barnes v. Allen, 1 Brown's Ch. Rep.s.p. 181;Jones v. Roe, 3 Term, 88; Medley v. Medley, 81 Va. 265.
Upon the death of Mrs. Voorhees, Suzette L. and Justine H. Ingersoll each took a vested interest by way of executory devise, defeasible on the contingency of the survival of Miss Linzee by Charles R. Ingersoll. Austin v. Bristol, 40 Conn. 120,135.
Each of the executory devises in question was to a certain person, but contingent on the happening of an uncertain event. That to Charles R. Ingersoll hung on the condition precedent of his surviving Miss Linzee, and during her life he could have no transmissible interest. That to Suzette L. Ingersoll was defeasible on the contingency of his surviving Miss Linzee, but was not dependent on Suzette surviving him. Bristol v. Atwater, 50 Conn. 402, 409. It follows that upon Suzette's death it became part of her estate.
The Superior Court is advised that half the fund in controversy belongs to Justine H. Ingersoll, and half to Maud E. Hayes as administratrix cum testamento annexo.
No costs will be taxed in this court for or against either party.
In this opinion the other judges concurred.