Conklin v. Conklin

The Assistant Vice-Chancellor.

The devise to the *67 nephews of the testator was clearly for their life only, and the words used in the devise of the remainder, are not such as would have created an estate tail, within the rule in Shelley’s case. (6 Cruise’s Digest, 346; Tanner v. Livingston, 12 Wend. 83 .)

The principal question in the cause, arises upon the construction of the words, “their male heirs that they now have or may have hereafter,” in the gift, of the estate in remainder.

It is insisted in behalf of the various parties, 1. that the testator intended only those who were properly heirs of his nephews, which construction excludes those male children of Elkanah Conklin who died in his lifetime. 2. That the devise was to all such heirs proper per capita, and not per stirpes. And 3., that all Elkanah’s male children living at the death of the testator, took a vested remainder in fee, which remainder opened .and let in after born male children of Elkanah.

The expression “male heirs that they now havef is a good description of the male children of the testator’s nephews who were then living. " The testator meant heirs apparent, and not heirs in its legal signification. (1 Powell on Devises, by Jarman, 306; 1 Fearne on Cont. Rem. 320 ; James v. Richardson, T. Jones, Rep. 99, S. C. T. Raym. 330, and Carthew, 154, nomine, Burc hett v. Durdant.)

The devise of the remainder therefore, embraced all the sons of Elkanah Conklin who were living at the death of the testator, as well as those who were born subsequently.

The next inquiry is whether those sons took vested interests, during the continuance of their father’s life estate; or were the devises to them contingent remainders ?

There is nothing in the will adverse to the ground that these remainders vested, except the limitation over on Elkanah’s dying without male heirs. I need not stop to consider the force of that limitation, in this part of the case, for I do not think that if valid, it prevents the remainders from vesting in his sons. After the death of the testator each of the sons of Elkanah then living, would on the death of their father have had an absolute and immediate right to the possession of the lands in question. It was a right, which could not be defeated by any contingent event, failure of condition precedent, or act of a third person; provided

*68 they lived till the end of the particular estate, and the termination of that estate was an event which was certain to happen. The remainders therefore, vested in interest at the death of the testator, in the sons of Eikanah then living, subject to open and let in his after born sons, and the latter on their birth respectively, took like vested remainders as tenants in common with their brothers. (See Hawley v. James, 5 Paige, 466 , per Chancellor ; Macomb v. Miller, 9 ibid. 265 ; S. C. on appeal, 26 Wend. 229 ; Williamson v. Field, July 21, 1845, before the Assistant Vice-Chancello r.) (a)

If the limitation to the female heirs, on the failure of heirs male, were valid, then these remainders which vested in the sons, were liable to be defeated by that event. But I am satisfied that the limitation was too remote, and it can not be upheld. It was to take effect on Elkanah’s dying without male heirs ; in other words, upon an indefinite failure of his male heirs, lineal and collateral ; which might happen by possibility in this generation, but which more probably, would never happen. It was therefore void, according to the established rule which prevailed before our revised statutes. (4 Kent’s Comm. 273, et succ., 2d ed.; Macomb v. Miller, ubi supra.)

The result is that each son of Eikanah Conklin living at the testator’s death, or born subsequently, took a vested and absolute estate in fee in remainder, in the premises devised. Oti the death of Ebenezer and Isaac without issue, Eikanah their father inherited their undivided shares, and on his death, those shares descended to his heirs.

The children of Moses Conklin inherited his share, and also their proportion of the shares of Ebenezer and Isaac. And the children of Mrs. Doughty as heirs of their grandfather, inherited a part of the same two shares.

Mrs. Harris in like manner inherited one-sixth part of the same shares of the property.

The partition must be made on these principles.

In regard to the improvements, the three sons who survived *69 Elkanah, assert that they were made in good faith, and under the supposition that the whole title vested in those sons under the will of the testator. So far as the expenditures thus made, enhance the present value of the premises, the case of St. Felix v. Rankin, (3 Edw. Ch. R. 323,) is an authority for allowing such value to those parties, (a)

The complainant’s counsel omitted to introduce proof on the point, supposing it would be proper on the reference as to title.

As there must be a reference also to establish the truth of the bill as against the infant defendants, the order may embrace the subject of the alleged permanent improvements. On the coming in of the master’s report, the cause may be set down for a hearing, and a decree for partition made inc onformity with the facts as they then appear, and with the views now expressed.

Now reported, 2 Sand. Ch. R. 533.

And see Neesom v. Clarkson, before Sir James Wigram, V. C. 4 Hare’s B. 97.