The testatrix gave the residue of her estate to her executors in trust for her daughter. Mrs. Dell, the trust to continue till her death, and if she died leaving minor children, until her youngest child *Page 192 should arrive at the age of twenty-one years. The terms of the trust are immaterial. The remainder, at the termination of the trust, is disposed of as follows: — "At the time of the youngest living child becoming twenty-one years of age, I direct my said trustees to pay to such child, or if children to them, share and share alike, one quarter of the principal hereby bequeathed and devised to my said trustees," etc. Then follows a provision that a child or children of a deceased child shall take the share that the parent, if living, would have taken. It then provides that another quarter shall be paid ten years after the first payment, and the balance in ten years after the second payment. In default of children and grandchildren, there are gifts over to Harriet Hendrick, Anna H. Stillman, and Mrs. M. J. Cowan.
It is conceded that it was the intention of the testatrix that the children of Mrs. Dell should take the remainder. The only question is, is the gift to them, valid? It is claimed that it is void by virtue of the statute against perpetuities. It seems to me very clear that the title to the remainder vested in the children of Mrs. Dell as a class, at the death of the testatrix. It is familiar and undisputed law that in such cases the class opens to let in after-born children, and that the title is devested as to those who die without issue.
It is a salutary rule of construction that courts will, in cases when it can be done without doing violence to the language of the will, construe estates as vested rather than contingent, and this for the purpose of saving the will and giving effect to the intention of the testator. This rule, if applied, saves this estate to the children. I find nothing in this will forbidding the application. The direction to pay over at the termination of the trust is not inconsistent with a vested title. It is the ordinary case of a postponement of payment to a time subsequent to the vesting of the title in right.
Suppose the remainder had been given to the children of Mrs. Dell who should be living at the time of her decease, payable at the termination of the trust; can it be doubted that *Page 193 such a bequest would be valid? How does the actual case differ, in principle, from the one supposed?
The majority opinion rests the decision solely on the authority of Andrews v. Rice, 53 Conn., 566. A brief reference to that case will serve to show a clear distinction between it and this, and will demonstrate that it is not applicable. The gift in that case was in the following language: — "At the decease of my said surviving daughter said trustees shall divide the principal of said trust estate into as many equal shares as I may have grandchildren, or their issue then living, the issue of any deceased grandchildren to be counted as one share; and I give and devise one of said equal shares to each of ray said grandchildren in fee simple, and one of said shares to the said issue of each deceased grandchild who has left issue then surviving in fee simple, to be equally divided; and said trustees shall convey and pay over," etc.
At the death of the daughter the estate was to be divided into shares, and the number of shares could not possibly have been ascertained until that time. Note also the language of the gift; — "I give and devise one of said equal shares to each of my said grandchildren," etc. An estate in severalty is then, after a division, given to each grandchild in one share; and not the whole estate to the grandchildren as a class. That surely is not this case. I would also call attention to the reasoning of the court. "There is in fact no gift until there is a division of the property into shares, and there can be no division until the death of the surviving daughter. Until then the number of shares cannot be known. Upon the division there is a gift of one share to each grandchild and to the issue of each grandchild. There is not one gift of the whole property to all the legatees to be subsequently distributed, but there is first a division and then a gift of one share to each. Each grandchild takes his or her share in severalty, and the children of each deceased grandchild take one share as tenants in common. Until the division of the property therefore *Page 194 no one has any vested interest in any part of the property." How is it possible to apply this reasoning to this case?
The opinion of the majority concludes by declaring that the trust is good, and that, subject to the trust, the fee is in Mrs. Dell as heir at law. Suppose it should so happen, as it may, that Mrs. Dell should die leaving no children and the issue of no children. Then the contingency happens on which the gifts over to Harriet Hendrick, Anna H. Stillman and Mrs. M. J. Cowan depend. In that event what becomes of those bequests? Are they, too, void? If so, for what reason?