Kenyon v. . See

94 N.Y. 563, 1884 N.Y. LEXIS 302

• Court: New York Court of Appeals
• Decided: February 5, 1884
• Status: Published

Opinion

Andrews, J.

Seymour H. Spencer took no vested estate or interest in the principal or income of the fund given in trust to Selden M. Spencer by the eighth clause of the will of the testator, John Milderbei'ger. The right to either was conditional. He was entitled to the income only upon and from his renunciation' of the Eoman Catholic priesthood, and to the principal only upon his marriage. The conditions were precedent, and, until performance, he took no interest, legal or equitable, in the fund. The tenth clause makes an alternative gift of the trust estate to Selden M. upon his marriage, in case of the death of Seymour H., without having married. This gift was conditional also, there being a double condition, first, the death of Seymour H. before his marriage, and second, the marriage of Selden M. If the contingent interest of Selden M. did not lapse upon his death before Seymour H., or in other words, if it survived and was transmissible like a vested interest, then the appellant must fail, as he has no interest which can be affected by the decree of the surrogate. We think this contingent right passed on the death of Selden M. to his representatives, and that, on the death of Seymour H. before marriage, they will be entitled to the fund. The survivorship of Selden M. is no part of the contingency upon which the gift to him is limited. The testator, as the will indicates, intended to make a complete disposition of his property. The alternative dis position was made to meet the contingency, that Seymour H. might not accept the conditions upon which the gift to him depended. There is no reason to suppose that the testator intended to confine the benefit of this provision to Selden M. personally, and to exclude his family or descendants when he made marriage one of the conditions of his taking at all. If the continued existence of the legatee, in case of a contingent legacy, is part of the contingency upon which the gift is limited, then there can be no doubt. But in this case the personal enjoyment of the legacy by Selden M. was not made essential to its taking effect. The general rule is that contingent interests are assignable, devisable and descendible. “ In general,” says Fearne, “ it seems that contingent interests pass to the real and personal representatives, according to the nature of such interests, as well as vested interests, so as to entitle such personal representatives to them when the contingencies happen.” (Fearne on Cont. Rem. 364.) The rule stated by the learned author is supported by numerous authorities. (Pinbury v. Elkin, 1 P. Wms. 563; King v. Withers, Cas. Temp. Talb. 117; Chancy v. Graydon, 2 Atk. 616; Barnes v. Allen, 1 Bro. Ch. Rep. 181; Winslow v. Goodwin, 7 Metc. 363.)

Here one of the conditions upon which Selden M. was to take, viz., marriage, was performed before his death. The other condition, viz., the death of Seymour H. before marriage, has not happened. It may never happen, as Seymour H. may marry, however improbable this may be. If he does marry, then he will be entitled to the third part of the estate of the testator, under the will, unless his attempted transfer to Selden M. operates as an estoppel. In either event, whether Seymour FI. takes, or the representatives of Selden M., the appellant has no interest. One of the two things will happen, and which is a matter with which he has no concern. No question is made as to the validity of the trust in the will of John Milderberger,

We think the case was properly disposed of by the surrogate, and that the judgment of the General Term should be affirmed.

All concur.

Judgment affirmed.