Clark v. Peters

ing her natural life; after her death I give, devise and bequeath the'said one-fourth part to her two children, Ernest T. and Camilla, share and share alike, or to the survivor of them, on his or her attaining lawful age.”

The two children, Ernest T. and Camilla, attained full age, but Ernest predeceased his mother, the life tenant, leaving issue him surviving, and it is claimed that Camilla, the surviving child, takes the entire devise to the exclusion of the children of her deceased brother, Ernest T.

The question is: At what time did the interest of Ernest T. vest, did it vest on the death of the testator, or when the remainderman became 21, or was it intended that his interest should not vest until the death of the life tenant? If the language is capable of any construction which will permit the issue of the deceased son to participate in the remainder limited upon his mother’s life estate, that construction, on well-settled principles, should be adopted in preference to one which should exclude them. Matter of Brown, 93 N. Y. 295 -299. A remainder is not to be considered as contingent in any case where it may be vested consistently with the intention of the testator. The words “after” and “upon the death of,” and like words, do not make a contingency, but merely indicate when the remainder shall take effect in possession—the commencement of the enjoyment of the estate. Embury v. Sheldon, 68 N. Y. 236 . As stated in Connelly v. O’Brien, 166 N. Y. 406 -408, 60 N. E. 20 :

“A remainder is not to be considered as contingent in any case where it may fairly be construed to be vested, since the law favors the vesting of estates. The adverbs of time, therefore, such as ‘when,’* ‘then,’ ‘after,’ ‘from and after,’ etc., in a devise of a remainder limited upon a life estate, are construed to relate merely to the time of the enjoyment of the estate, and not to the time of its vesting in interest. The law favors such a construction of a will as will avoid the disinheritance of remaindermen who may happen to die before the determination of the precedent estate.”

Applying these principals, it must be held that the vesting of Ernest T. and Camilla occurred on the death of the testator, but the time of enjoyment depended upon the happening of two events—one, which was necessarily certain, the death of the life tenant, and another, uncertain, the attainment of full age by the remaindermen. It is settled law that, when an estate in land is devised to an infant “when he attains the age of twenty-one years,” his attaining that age is not a condition precedent to the vesting of his estate, but a simple postponement of the period at which he shall take possession. He takes a vested fee, which becomes defeasible if he die before maturity. This contingency is treated as a condition subsequent. Radley v. Kuhn, 97 N. Y. 35 ; Roome v. Philips, 24 N. Y. 465 ; Chapl. on Susp. Alien., 13-37, 291; Gerard Title (5th Ed.) 227. In effect, the clause in question gave the property to the remaindermen subject to the life estate of their mother, and subject further to the divesting of the interest of either dying under 21 years of age. The estate being vested in Ernest T. and Camilla, Ernest T. having attained full age, his interest could not be defeated by the circumstance of his death occurring before the death of the life tenant. There is no provision requiring that the children should survive the life tenant. The words of survivorship have