The opinion of the Court was delivered by
McIver, A. J.
C. H. Faber, by his last will and testament, devised the land in question to certain trustees in trust for the use' of his son, John Lewis Faber, for his life, and from and immediately after the death of his son in trust for the lawful issue of said son living at the time of his death ; and in case of his death without leaving issue living at the time of his death, then to his residuary legatees and devisees.
[386] The testator died leaving his widow and his son John Lewis Faber as his only heirs-at-law. On the 1st of July, 1843, John Lewis Faber, being then of age and in possession of the premises, conveyed the same by deed of feoffment and livery of seizin to one Folker, who on the next day reconveyed the same to the said John Lewis Faber in fee simple, and a few days thereafter the widow of the testator released all her right in the premises to John Lewis Faber. At the time of the execution of this deed John Lewis Faber had never been married, but he subsequently married and now has three children, all of whom are minors. On the 6th of February, 1851, John Lewis Faber conveyed the premises to his mother, who died intestate some time in the year 1858, leaving as her sole heir-at-law her son, the said John Lewis Faber. No letters of administration upon her estate have ever been taken out. On the 19th of July, 1875, the defendant, J. G. Police, contracted to purchase from the plaintiff, John Lewis Faber, the said premises, but afterwards declined to accept the title upon the ground that Faber could not convey a fee simple interest. This action was then brought to recover damages for the breach of such contract, the real object being to obtain the decision of the Court as to the validity of the title.
The appellant contends: 1st. That the estate limited to the issue of John Lewis Faber is vested and not a contingent remainder, and therefore the remainder was not barred by the deed of feoffment and livery of seizin. Questions of this kind are involved in no little difficulty and uncertainty, owing mainly, as we think, to the efforts which the Courts have made to construe limitations so as to constitute vested instead of contingent remainders, the rule being, as stated by Kent, (4 Com., 203,) that “the law favors vested estates and no remainder will be construed to be contingent which may, consistently with the intention, be deemed vested.” This rule, by its very terms, admits, as it should do, the paramount importance of the intention of the testator, which must necessarily override every other rule and be the governing principle, otherwise the Court instead of the testator would make the will. Hence, when the testator’s intention can be discovered it miist necessarily be carried out, unless it is inconsistent with the law of the land. In looking for this intention we must be guided by the words which the testator has used, reading them in the light of established principles of law. Looking, then, at the clause of the [387] will under consideration in tbis light, we think it clear that the remainders created are contingent and not vested remainders. It is very clear, from the language used, that the testator did not intend that the issue should take the estate in remainder absolutely and at all events, but only on a contingency — that of their surviving their father; and it is equally clear that he did not intend that the residuary legatees and devisees should take the estate in remainder absolutely and at all events, but only on a contingency — that of the son dying without leaving issue living at the time of his death. There is no language in the will which would convey the idea that the testator intended that either class of remaindermen should be invested with an absolute right with only the enjoyment in possession postponed to a future period, but their right as well as their enjoyment in possession is not only postponed to a future period but is made to depend upon an uncertain event. This manifest intention of the testator is not only not inconsistent with any of the rules of law, but, on the contrary, as we shall see, is in strict conformity with such rules. According to the elementary writers a vested remainder is one which is limited to an ascertained person in being, whose right to the estate is fixed and certain, and does not depend upon the happening of any future event, but whose enjoyment in possession is postponed to some future time. A contingent remainder, on the other hand, is one which is limited to a person not in being or not ascertained; or, if limited to an ascertained person, it is so limited that his right to the estate depends upon some contingency in the future. So that the most marked distinction between the two kinds of remainders is that in the one case the right to the estate is fixed and certain, though the right to the possession is deferred to some future period; while in the other the right to the estate as well as the right to the possession of such estate is not only deferred to a future period but is dependent upon the happening of some future contingency. As it has been well expressed, “ it is not the uncertainty of the estate in the future but the uncertainty of the right to such enjoyment which marks the difference between a contingent and a vested remainder.”
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The opinion of the Court was delivered by
McIver, A. J.
C. H. Faber, by his last will and testament, devised the land in question to certain trustees in trust for the use' of his son, John Lewis Faber, for his life, and from and immediately after the death of his son in trust for the lawful issue of said son living at the time of his death ; and in case of his death without leaving issue living at the time of his death, then to his residuary legatees and devisees.
[386] The testator died leaving his widow and his son John Lewis Faber as his only heirs-at-law. On the 1st of July, 1843, John Lewis Faber, being then of age and in possession of the premises, conveyed the same by deed of feoffment and livery of seizin to one Folker, who on the next day reconveyed the same to the said John Lewis Faber in fee simple, and a few days thereafter the widow of the testator released all her right in the premises to John Lewis Faber. At the time of the execution of this deed John Lewis Faber had never been married, but he subsequently married and now has three children, all of whom are minors. On the 6th of February, 1851, John Lewis Faber conveyed the premises to his mother, who died intestate some time in the year 1858, leaving as her sole heir-at-law her son, the said John Lewis Faber. No letters of administration upon her estate have ever been taken out. On the 19th of July, 1875, the defendant, J. G. Police, contracted to purchase from the plaintiff, John Lewis Faber, the said premises, but afterwards declined to accept the title upon the ground that Faber could not convey a fee simple interest. This action was then brought to recover damages for the breach of such contract, the real object being to obtain the decision of the Court as to the validity of the title.
The appellant contends: 1st. That the estate limited to the issue of John Lewis Faber is vested and not a contingent remainder, and therefore the remainder was not barred by the deed of feoffment and livery of seizin. Questions of this kind are involved in no little difficulty and uncertainty, owing mainly, as we think, to the efforts which the Courts have made to construe limitations so as to constitute vested instead of contingent remainders, the rule being, as stated by Kent, (4 Com., 203,) that “the law favors vested estates and no remainder will be construed to be contingent which may, consistently with the intention, be deemed vested.” This rule, by its very terms, admits, as it should do, the paramount importance of the intention of the testator, which must necessarily override every other rule and be the governing principle, otherwise the Court instead of the testator would make the will. Hence, when the testator’s intention can be discovered it miist necessarily be carried out, unless it is inconsistent with the law of the land. In looking for this intention we must be guided by the words which the testator has used, reading them in the light of established principles of law. Looking, then, at the clause of the [387] will under consideration in tbis light, we think it clear that the remainders created are contingent and not vested remainders. It is very clear, from the language used, that the testator did not intend that the issue should take the estate in remainder absolutely and at all events, but only on a contingency — that of their surviving their father; and it is equally clear that he did not intend that the residuary legatees and devisees should take the estate in remainder absolutely and at all events, but only on a contingency — that of the son dying without leaving issue living at the time of his death. There is no language in the will which would convey the idea that the testator intended that either class of remaindermen should be invested with an absolute right with only the enjoyment in possession postponed to a future period, but their right as well as their enjoyment in possession is not only postponed to a future period but is made to depend upon an uncertain event. This manifest intention of the testator is not only not inconsistent with any of the rules of law, but, on the contrary, as we shall see, is in strict conformity with such rules. According to the elementary writers a vested remainder is one which is limited to an ascertained person in being, whose right to the estate is fixed and certain, and does not depend upon the happening of any future event, but whose enjoyment in possession is postponed to some future time. A contingent remainder, on the other hand, is one which is limited to a person not in being or not ascertained; or, if limited to an ascertained person, it is so limited that his right to the estate depends upon some contingency in the future. So that the most marked distinction between the two kinds of remainders is that in the one case the right to the estate is fixed and certain, though the right to the possession is deferred to some future period; while in the other the right to the estate as well as the right to the possession of such estate is not only deferred to a future period but is dependent upon the happening of some future contingency. As it has been well expressed, “ it is not the uncertainty of the estate in the future but the uncertainty of the right to such enjoyment which marks the difference between a contingent and a vested remainder.”
Keeping in mind these principles, which are so well established as to need no citations of authority to support them, and remembering that the estate in remainder, whether vested or contingent, must necessarily have been created at the same time that the particular estate upon which it rests passed out of the testator, we will find no [388] difficulty in determining the nature of the estate in remainder created by the will under consideration. These estates, as well the particular estate for the life of John Lewis Faber as the estate in remainder to his issue, and in default of such issue to the residuary legatees and devisees, passed out of the testator at the time of his death, — the time when his will, the instrument by which the estates were created, speaks. Then it was that these estates were created, and to that point of time must we look to determine their character. It is very clear that at that time it was wholly uncertain who would be the persons to take at the termination of the particular estate. The life tenant then had no issue, and it was, of course, uncertain whether be would ever have any; and as to the issue which he has subsequently had, it is yet uncertain whether any of them will be living at his death, and the same uncertainty exists as to whether the residuary legatees and devisees will ever have the right to take. It is manifest, therefore, that at the time these estates were created, as well as now, it is altogether uncertain, not merely who will, at the termination of the life estate, be entitled to enjoy in possession the remainder, but who has now the right to the future enjoyment of such estate. The present issue cannot say that they have any such fixed and certain right, because their right depends upon a future contingency, — that of the life tenant dying leaving lawful issue, — and they may all die before the life tenant. Nor can the residuary legatees claim any such right, for their right also depends upon a future contingency, — the death of the life tenant without leaving lawful issue, — and they cannot claim that they have now a fixed and certain right to the possession when such possession shall become vacant by the death of the life tenant. One of the tests laid down in the books by which we may ascertain whether a remainder is vested or contingent is to inquire whether the person claiming such remainder, being mi juris, could, by uniting with the owner of the particular estate, convey a fee simple title. If he could, such a remainder must be regarded as vested ; otherwise it is contingent. For if the owner of the right to the immediate possession unites with the owner of the right to the future possession when such immediate possession shall become vacant in conveying the property, then the whole estate, present as well as future, is well conveyed. But if the owner of the right to the future possession is not ascertained, or if his right depends upon the happening of a future event, such right to the future possession could not be well [389] conveyed, and the grantee would necessarily take an imperfect title. Subjecting this case to this test, it must be apparent that the remainders are not vested, for neither class of remaindermen could, by uniting with the life tenant, convey a good title. The issue of the son could not, because if the life tenant should survive such issue their conveyance would not carry the title in remainder; and the residuary legatees and devisees could not, because if the life tenant should die leaving any issue their conveyance would not carry the title in remainder, and, therefore, the property would not be well conveyed. As Harper, Ch., says in Dehon vs. Redfern, (Dud. Eq., 118,) in speaking of remainders like those under consideration: “They were to the children who should be living at the death of the daughters respectively, or to the children of those who had died leaving children. Until the death of the daughters it must remain perfectly uncertain who will be the persons to take, and this is the definition of one species of contingent remainders.” So here the remainder is to the issue of John Lewis Faber “living at the time of his death;” and in default of such issue, to the residuary legatees and devisees. Until the death of John Lewis Faber it must remain perfectly uncertain who will be the persons to take, and hence the remainders are contingent. If so, then, it necessarily follows, upon the authority of Redfern vs. Middleton, (Rice, 459,) in which the Court of Errors adopted the reasoning of Chancellor Harper in his circuit decree in Dehon vs. Redfern, (Dud., 115,) that the contingent remainders to the issue of John Lewis Faber, and in default of such issue to the residuary legatees and deviseesj were barred by the deed of feoffment and livery of seizin to Folker, and by his reconveyance to John Lewis Faber and the release of Mrs. Ann Margaret Faber of all her interest the absolute title was perfected in the said John Lewis Faber.
But, second, it is argued by the appellant that, even if the remainders be construed to be contingent and not vested, yet the deed of feoffment and livery of seizin could not bar such remainders, because the legal estate was vested in the trustees. This proposition might be admitted if it were true that the legal estate ivas in the trustees. It becomes necessary, therefore, to consider that question. The rule undoubtedly is, that where there is a conveyance to one for the use of another, and the trustee is charged with no duty which renders it necessary that the legal estate should remain in him to enable him prop[390] erly to perform such duty, the Statute of Uses executes the use and carries the legal title to the oestui que use.—Ramsey vs. Marsh, 2 McC., 252; Laurens vs. Jenny, 1 Spear., 856; McNish vs. Guerard, 4 Strob. Eq., 66. By the terms of the will under consideration it does not appear that the trustees are charged with any duty whatsoever. The language is “ in trust to and for the use, benefit and behoof of my son John Lewis Faber, for and during the term of his natural life and no longer; and from and immediately after the death of my said son, then in trust to and for the lawful issue of my said son living at the time of his death; * * * and should my said son die without leaving lawfully-begotten issue living at the time of his death, then and in that case I give, devise and bequeath all and singular the lots of land, &c., * * * unto my residuary devisees and legatees, their heirs and assigns forever, to be equally divided between them share and share alike.” There is no provision that the trustees shall receive the rents and incomes of the property and pay them over to the son or to Iiis issue after his death, nor is there any provision that the trustees shall have the estate for the sole and separate use of any of the issue who might happen to be married women; in fact, no duty whatsoever is imposed upon the,trustees.
It is argued, however, that though the will does not in terms create a trust to preserve the contingent remainders, yet that such a trust may be implied. We know of no authority for such a position, and none has been cited. We are at a loss to conceive by what right a Court could undertake to add to the words of a will, by which additional trusts to those which the testator has seen fit to declare should be raised. It is very true that in some cases where no trusts whatever are declared a Court of equity will imply a trust from the conduct and relations of the parties, as where one purchases lands with the money of another and takes title in his own name, or where one comes into the possession of trust property with notice of the trust, or where, prior to the Constitution of 1868, property was given for the sole and separate use of a married woman. But where the owner of property in disposing of it either by deed or will declares the trusts upon which he desires it to be held, we are unable to see by what authority a Court could undertake to add to the trust so declared. We think, therefore, upon principle, as well as upon express authority, especially the case of Ramsey vs. Marsh, supra, where the trusts declared were very much [391] the same as in the case now under consideration, that the legal title to the premises in question was, by the operation of the Statute of Uses, vested in the cestui que use. The other exception taken to the judgment below, that, until administration upon the estate of Mrs. Faber, the plaintiff could not convey the premises, was not insisted upon in the argument here, and, therefore, we infer that it was abandoned. But if we are wrong in this inference we may say that we do not think this exception would avail the appellant. Mrs. Faber died in 1858, and up to this time no claims have been set up against her estate, so far as we are informed by the record. But, certainly, if appellant had accepted the title when tendered, and debts against the estate of Mrs. Faber should afterwards have been set up, he would have been protected in his title by the Statute of 3 and 4 William and Mary, Chap. XIV, 2 Stat., 535. This, therefore, constituted no valid objection to the title.
The judgment of the Circuit Court is affirmed.
Haskell, A. J., concurred.
Willard, C. J.
I regret that we are compelled to give efficacy to an act of wrong on the part of the life tenant in destroying the remainders and to that extent defeating the intention of the testator. This effect, originally dependent upon purely technical grounds, has become embodied in the laws of our State, and we have no power to deny its force. I am satisfied that at the time of the alienation the remainders were contingent, issue not having been born. As it regards the question whether the limitation to issue living at the death of the first taker gave a remainder that could not vest upon the birth of issue, I do not deem it necessary at the present time to pass upon it. Such a view is not necessarily precluded by Gregg vs. Seabrook, but still I think that counsel should be heard on that case before that conclusion is reached.