De Vries v. De Vries (17 Cal. App. 184, 1911)

HART, J.

The single question submitted on this appeal, which is prosecuted from an order or decree denying the petition of the appellant for a decree of partial distribution of the estate of William H. De Yries, deceased, is whether the remainder to said appellant, provided for by the fourth clause of the last will and testament of said deceased, is vested or contingent.

The court below, two of the judges thereof presiding at the hearing and concurring in the conclusion therein reached, held the remainder so devised to the appellant, Marion De Vries, to be contingent.

The decision of the question presented here must, obviously, rest on the intention of the testator, and, in turn, such intention must be gathered from an interpretation of the language of the last will and testament of the testator.

The language of said testament particularly pertinent to this inquiry reads:

“Second. I give, devise and bequeath all the property of which I may die seized and possessed, both real and personal, to my beloved wife, Mary Jane De Yries, for her natural life, the remainder thereof to my sons hereinafter named in proportions for the time and upon the conditions hereinafter expressed: . . .

“Fourth. Upon the termination of the life estate hereby created in my wife, Mary Jane De Vries, I give and devise unto my son, Marion De Vries, all those certain lots, pieces and parcels of land, situate,” etc. . . .

“If my son, Marion De Vries, should precede in death his wife, Minnie L. De Vries, and leave him no lawful issue surviving, and should such death of my son, Marion De Vries, occur before the property herein devised and bequeathed to him vests in him, then, all the interests herein and hereby devised and bequeathed to said Marion De Vries shall pass to and vest in and become the property of said Minnie L. De Vries, my son, Marion’s wife, absolutely and forever.”

The contention of the appellant is that, under the terms of said will, that portion of the estate so devised to him vested in him, by virtue of the provisions of section 694 of the Civil Code, immediately upon the death of the testator.

Reproduced in the transcript on appeal is the written opinion of the learned trial judges, in which they set forth their reasons for the conclusion reached by them adversely to the contention of appellant, and from said opinion we gather that their position is planted principally on their interpretation of the language of the clause of the testament devising to appellant out of the life estate a certain interest in remainder. The argument appears to be that the words, ‘ ‘ Upon the termination of the life estate hereby created in my wife, Mary Jane De Tries, I give and devise to my son, Marion De Vries, all those certain lands,” etc., clearly imply an intention on the part of the testator to fix “the time when said estate is to vest not only in interest but also in possession” as at the termination of the life estate. In other words, it is held by the court below that by use of the words “upon the termination of the life estate” the testator intended to say that the interest in remainder to Marion De Vries should not vest until after the determination of said life estate, and this construction of the testament, in so far as it affects the devise to the said Marion, is sustained, so the reasoning proceeds, by the provision for the wife of said Marion in the event that the latter should precede in death the former, leaving “him no lawful issue surviving.”

We are unable to assent to the construction thus given the instrument in question and the conclusion arrived at by the court below therefrom.

It is, of course, to be conceded that great difficulty often arises in determining whether a vested or contingent remainder was intended by the language of an instrument whose manifest purpose is to carve out of the same estate two or more separate and distinct interests—the one the right to the possession of which is to be enjoyed in praesenti and the others in futuro. Indeed, it is manifestly a much more simple task to formulate, as the law-writers and the legislature have done, a general distinction between vested and contingent future interests than to apply, in many instances, a distinction to concrete cases. The general definitions of vested and contingent remainders, as given by the law-writers and our code, are sufficiently clear and explicit, yet, after all, the real point of decision in all cases where the question is whether a future interest created by devise or otherwise is vested or contingent is as to the intention of the testator or grantor in that regard, and such intention, as before stated and as is obviously true, must, in cases where construction is necessary, be gathered from the language of the instrument viewed by the light of established and accepted canons of construction. (Civ. Code, sec. 1317 et seq.)

In the case at bar, however, we have, upon a careful scrutiny of the whole testament by the aid of the rules to which we have referred and the reflected light of the adjudicated cases, found much less difficulty in reaching a conclusion as to the intention of the testator with regard to the fourth clause of his will than a mere glance at the instrument seemed to indicate.

But before proceeding to an examination of the instrument itself, we may, with propriety, state a few general rules which apply to inquiries of the nature of the one presented here.

“A future interest is vested,” says our Civil Code, section 694, “when there is a person in being who would have a right, defeasible or indefeasible, to the immediate possession of the property, upon the ceasing of the intermediate or precedent interest,” and, continues the same code, “a future interest is contingent, whilst the person in whom, or the event upon which, it is limited to take effect remains uncertain.” (Sec. 695.)

In the ease of the Estate of Washburn, 11 Cal. App. 735, 741, [106 Pac. 415], this court, through Chipman, B. J., approves the definition of a vested remainder as it is given in the American and English Encyclopedia of Law, volume 24, second edition, page 389, as follows: “The true criterion of a vested remainder is the existence in an ascertained person of a present fixed right of future enjoyment of the estate limited in remainder, which right will take effect in possession immediately on the determination of the precedent estate, irrespective of any collateral event, provided the estate in remainder does not determine before the precedent estate.”

In Hayward et al. v. Peavey, 128 Ill. 430, [15 Am. St. Rep. 120, 21 N. E. 503], the subject of remainders is thus spoken of ': “A remainder is said to be vested when a present interest passes to a party, to be enjoyed in the future, so that the estate is invariably fixed in a determinate person after the particular estate terminates, while a contingent remainder is one limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event. (2 Blackstone’s Commentaries, 168.) . . . But it does not necessarily follow that every estate in remainder which is subject to a contingency or condition is a contingent remainder. The condition may be precedent or subsequent. If the former, the remainder cannot vest until that which is contingent has happened, and thereby become certain. If the latter, the estate vests immediately, subject to be defeated by the happening of the condition”—citing cases.

“It is,” says Kent (4 Commentaries, 202-206), “the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, that renders the remainder contingent.”

The foregoing formulas, as before stated, are, of course, clear and easy of apprehension, but the important and often the difficult question then arises whether a present fixed right of future enjoyment of the estate limited in remainder exists in “an ascertained person.”

While it will always seek to effectuate the wishes of the testator, “the law prefers to consider future estates as vested.” (Estate of Washburn, 11 Cal. App. 735, [106 Pac. 415].) As is said in Farnam v. Farnam, 53 Conn. 278, [2 Atl. 327] : ‘‘ That the' courts will incline in doubtful eases to construe a devise or legacy as vested rather than contingent- is a familiar and well-settled rule. In some instances courts seem to have gone so far as to say that they will, if possible, construe it as vested. It is enough for our .present purpose to say that we ought to give this will that construction if its language will fairly admit of it.”

After reviewing the decisions of the courts of many jurisdictions, the American and English Encyclopedia of Law, second edition, volume 24, page 392, says: “The courts have always regarded contingent estates with disfavor, and from the earliest times have inclined toward that construction which holds a remainder vested rather than that which considers it contingent, when the question is doubtful. It has even been said that if there is the least doubt, advantage is to be taken of the -circumstance occasioning that doubt to hold that the remainder is vested and not contingent. ’ ’

In Williams v. Williams, 73 Cal. 99, [14 Pac. 394], our supreme court says: “The law favors the vesting of interests, and every interest will be presumed to vest, unless a contrary intention is clearly manifested.”

And, lastly, upon this proposition, section 1341 of our Civil Code provides that “testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator’s death.”

We have discovered no language anywhere in the testament before us that is inconsistent with the view that by the devise to Marion De Vries the testator intended to create in the former a vested future interest.

It will first be noted that the second clause of the testament under present consideration reads: “I give, devise and bequeath all the property of which I may die seized and possessed, both real and personal to my beloved wife, Mary Jane De Vries, for her natural life, the remainder thereof to my sons hereinafter 'named,” etc.

It is declared by the learned trial judges, in their written opinion, that if the foregoing “were the only provision of the will relating to the disposition of. the testator’s property the question would be free from doubt.” It is, of course, to be conceded that if the devises subsequently made by the testator' are inconsistent with the language of the second clause of the testament just .quoted, such devises must prevail. In other words, while the language of the second clause of the will clearly indicates an intention to create vested remainders over to the sons, yet if the specific devises in remainder to the sons subsequently created out of the property from which the life estate is carved, are made subject to such contingencies as to the right of enjoyment as to clearly disclose an intention to create contingent remainders, then the devises so made .would, of course, control the general language of the second clause of the testament and would, therefore, prevail. On the other hand, if we find no inconsistency between the general language of the second clause and the language in which the specific devises are declared, or, if the language by which the specific devises are created is so ambiguous as to make it uncertain whether therein and thereby the testator intended to create vested or contingent future interests, and there are no other circumstances arising from the testament itself to compel a contrary view, then the general language of the second clause of the testament to which we have referred becomes of signal and, indeed, controlling importance as an aid in the ascertainment of the intention of the testator with regard to the time of the vesting of the right of enjoyment of such future interests.

But, apart from any consideration of the general language of the instrument, we think that, as before declared, from the language of the fourth clause itself, and through no strained or unnatural construction thereof, no serious difficulty need confront the court in reaching the conclusion that the intention of the testator as therein and thereby expressed was to create in his son, Marion, a vested remainder.

It will be observed that the fourth clause of the testament is divided into two paragraphs: The first involving the devise to Marion; the second, to the latter’s wife. It will further be observed that the first paragraph uses words of present devise—that is, the language of the testator is: “I give and bequeath,”' etc. Thus far there could not arise any question but that the testator intended by the use of those words the vesting in Marion De Vries a present fixed right. But, as we have seen, the contention is that the language immediately preceding the quoted words, “Upon the termination of the life estate hereby created in my wife, Mary Jane De Vries,” refers the vesting of the right to the time of the death of the life tenant or the termination by her death of the life estate, and that, therefore, the effect of said language is not only the postponement of the time of the actual enjoyment but also of the time of the vesting of the right of enjoyment of the future interest thus created. But we think that where, as here, words of devise refer to the present or are in the present tense, the words, “upon the termination of the life estate” or “after” such termination, relate to the time of the possession or actual enjoyment of the interest so devised and not to the time at which such interest shall vest or become in the donee a fixed right. It will not for a moment be questioned that words of present devise, such as are used here, are inconsistent with language which may be construed to postpone the immediate vesting of such right, and, as suggested, if the language immediately preceding the words of present devise in the fourth clause of the testament here may be held to be inconsistent with the present vesting of the interest, then at least a serious doubt arises 'as to what the testator actually intended should be the effect in legal contemplation of the devise to Marion. Therefore, whether we may hold that the words of present devise as employed by the testator themselves irresistibly import an intention to create a vested remainder, or the language of the fourth clause, as a whole, is so uncertain and ambiguous as to leave in serious doubt what the testator’s specific intention in that respect was, in either case, under the uniformly accepted rules of construction, the conclusion must be the same. But, manifestly, if the construction contended for by the respondent and sustained by the court below be sound, the language, “I devise and bequeath,” or “give and devise,” is controlled entirely by the words immediately preceding it. We can perceive no reason for such construction, and, indeed, we are of the opinion, as before declared, that, when we consider the language of the clause in question in connection with other parts of the testament or with what appears clearly enough to us to be the general scheme of the testator, such construction would fall far short of discovering the intention of the deceased with respect to the devise to Marion.

But we are not without eminently respectable authority for the foregoing -views. The general rule as to the employment of words of present gift or devise, in immediate connection with the use of the prepositions “upon,” “after” and “at,” expressive of the time at which the intermediate estate must terminate, in instruments disposing of property, is laid down •by the American and. English Encyclopedia of Law, second edition, volume 30, page 768, as follows: “The use of words of present gift, or language which has the same import or effect, is expressly recognized as operating, in the absence of other controlling circumstances, to create