Wooten v. House, Tenn.

(36 S.

corpus of the estate. W. Rep. 932). As to the rights of a life tenant in natural gas under the land, see Gerkins v. Kentucky Salt Co., Ky.

(36 S. W. Rep. 1). Where a mining lease is executed by life tenants and the trustees of the remaindermen, the former are entitled, during their lives, to the income arising from the royalties accruing under such lease, and at their death the corpus of the fund should go to the remaindermen. Blakley v. Marshall, 174 Pa. 425 (34 Atl. Rep. 564). Where a testator devised property to be held in trust and managed by his executors, the net income and profits" after deducting certain charges to be paid by them to his daughter during her life, the corpus of the estate to go to others at her death, it is held that profits realized from the sale, at an advanced price, of real estate purchased by them upon their foreclosure of mortgages thereon, belongs to the daughter and not to the remaindermen. In re Parker's Estate, 173 Pa. 190 (33 Atl. Rep. 884). The right of reversioners to share the benefit of the purchase of an outstanding title by a life tenant is dependent upon their making contribution to him for the cost thereof within a reasonable time; and after a long lapse of time they cannot assert any rights as against third persons who have acquired the title in good faith. Cockrill v. Hutchinson, 135 Mo. 67 (36 S. W. Rep. 375; 58 Am. St. Rep. 564).

Sec. 281. Liability of life-tenant for taxes, interest and repairs. It is the duty of the life tenant to pay taxes. Defreese v. Lake, 109 Mich. 415 (67 N. W. Rep. 505; 32 L. R. A. 744); Ferguson v. Quinn, 97 Tenn. 46 (36 S. W. Rep. 576; 33 L. R. A. 688). Where there is an estate for life, and a remainder in fee, and there exists an incumbrance, binding the whole estate in the land, and no special equity exists between the life tenant and the remaindermen, the former is bound to pay the interest accruing upon the incumbrance during the continuance of his estate. Ivory v. Klein, 54 N. J. Eq. 379 (35 Atl. Rep. 346); Welbon v. Welbon, 109 Mich. 356 (67 N. W. Rep. 338). Where one, who owns an unincumbered life estate in lands and also the fee subject to the expectant life estate of another, discharges an interest bearing incumbrance thereon, the latter may be held liable to

contribute a share of the interest on the mortgage debt due or to become due during the expectancy, proportionate to the relative values of the estates. Damm v. Damm, 109 Mich. 619 (67 N. W. Rep. 984.) Where the life tenant in a homestead estate neglected and refused to pay taxes or to make repairs thereon for many years and to save the estate from entire loss to the reversioners the taxes were paid by the administrator with the will annexed, having the power so to do by the express terms of the will, it was held that such administrator might proceed in equity to have a receiver appointed to take charge of the premises, collect the income or rentals of the property, and apply the proceeds to pay the taxes and necessary expense of repairs, and reimburse the administrator for such taxes and expenses so paid, and also pay from such income any unpaid taxes or necessary expenses for repairs necessarily made to save the property; and that if such rental is insufficient, the receiver may, ander authority and direction of the trial court, proceed to sell the life estate of the defendant, in the premises, or so much thereof as may be sufficient for such purpose: St. Paul Trust Co. v. Mintzer, 65 Minn. 124 (67 N. W. Rep. 657; 32 L. R. A. 756).

Sec. 282. Future estates. A remainder after a life estate is a future estate, which, under How. Ann Mich. Stat., § 5551, is descendible, devisable and alienable in the same manner as estates in possession. Defreese v. Lake, 109 Mich. 415 (67 N. W. Rep. 505; 32 L. R. A. 744). A future estate may be limited to take effect after the termination of one or more lives in being and twenty-one and a fraction years thereafter. Chilcott v. Hart, 23 Colo. 40 (45 Pac. Rep. 391; 35 L. R. A. 41).

Sec. 283. Expectant estates-Conveyance. Applying How. Ann. Mich. Stat., § 5524, which defines an estate in expectancy to be "where the right to the possession is postponed to a future period," it is held that such an estate is not created by a deed of a grantor, whose only estate in the lands conveyed is the fee simple of an undivided interest, by the use therein of the expression " as well in possession as in expectancy." Fenton v. Miller, 108 Mich. 246 (65 N. W.

Rep. 966). A naked possibility or expectancy of an heir to his ancestor's estate, or even of the anticipated rights of a person as next of kin, may be the subject of a contract in equity which will be equivalent to an assignment of the prop erty, if, and when, it shall fall into possession. Brown v. Brown, 66 Conn. 493 (34 Atl. Rep. 490). Citing, 2 Spence Eq. Jur. 865; Beckley v. Newland, 2 P. Wms. 182; 2 Story, Eq. Jur., § 1040c; 3 Pom. Eq. Jur., § 1287; Fitzgerald v. Vestal, 4 Sneed 258; Parmelee v. Cameron, 41 N. Y. 392; Jenkins v. Stetson, 9 Allen 128. See Vol. IV, §§ 128-131.

Sec. 284. Limitations over. Although a fee cannot be limited upon a fee by deed, yet it can be so limited by will, by way of executory devise. A devise to testator's son D., "and his heirs forever, but, in case he should die without issue of his body, then the same shall go to the heirs of N., to them and their use forever," vests in D. a fee, determinable on his dying without leaving children at the time of his death, and the limitation over is valid as an executory devise. Strain v. Sweeney, 163 Ill. 603 (45 N. E. Rep. 201). In Connecticut the words "dying without issue," used in creating a limitation over after the death of the first taker, if not otherwise explained by the context, are construed as referring to dying without leaving issue surviving at the time of such death, and not as an indefinite failure of issue. Limitation over by way of an executory devise is inconsistent with any right on the part of the first taker to alienate or incumber the property, as against those who may be entitled to succeed upon the termination of his estate. St. John v. Dann, 66 Conn. 401 (34) Atl. Rep. 110). Where there is a gift without definition of the estate given, and also an unlimited power to dispose of the property, the generality of the gift and the unrestricted. power of disposal are construed to pass an absolute estate to the beneficiary, and any subsequent gift over is held to be void, because such a limitation over is inconsistent with the complete estate given to the first taker. Benz v. Benz v. Fabian, 54 N. J. Eq. 615 (35 Atl. Rep. 760).

Sec. 285. Remainders. Construing a will which gives the testator's realty to his wife for life and at her death

to pass to his son J., and if he should die without heirs, then to his two daughters M. and J., and if they should die without heirs it should go to another daughter, it is held, applying How. Ann. Mich. Stat., § 5538, providing," when a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words heirs or issue shall be construed to mean heirs or issue living at the death of the person named as ancestor," that on the death of the son without issue, after the death of the testator, the fee passed to the two daughters M. and J., and on their subsequent death without issue it passed to the other daughter. Mullreed v. Clark, 110 Mich. 229 (68 N. W. Rep. 138). Where a testator devises real estate to his wife for life and provides that the remainder at her death shall go to his children who are alive at that time, and if any shall have died leaving children such children shall take their parent's part, a daughter of the testator takes a defeasible fee in remainder which is divested by her death pending the life estate, and her children take as purchasers under the will, and not by descent. Dunlap v. Fant, 74 Miss. 197 (20 So. Rep. 874).

Sec. 286. Vested and contingent remainders. Vested, rather than contingent remainders, are to be favored. Byrne v. France, 131 Mo. 639 (33 S. W. Rep. 178). A vested remainder is an estate to take effect after another estate for years, life or in tail, which is so limited that, if that particular estate were to expire or end in any way at the present time, some certain person, who was in esse and answered the description of the remainder-man during the continuance of the particular estate, would thereupon become entitled to the immediate possession, irrespective of the concurrence of any collateral contingency. A remainder is contingent when it is so limited as to take effect in a person not in esse, or not ascertained, or upon an event which may never happen, or may not happen until after the determination of the particular estate. It is an elementary rule of construction, which has always been uniformly enforced, that no remainder will be construed to be contingent which may, consistently with the intention of the testator, be deemed vested. A remainder is not made contingent by an uncertainty as to the amount of

property that may remain undisposed of at the expiration of the particular estate, the life tenant having the power of disWoodman v. Woodman, 89 Me. 128 (35 Atl. Rep.

posal. 1037).

Sec. 287. Creation of vested remainders-Particular cases. The rule that a vested remainder exists wherever there is a limitation over after the particular estate of the required character, and there is a person in being who would have an immediate right to the possession of the land upon the ceasing of the intermediate precedent estate, is followed as a rule of property in the state of Alabama in the recent case of Smaw v. Young, 109 Ala. 528 (20 So. Rep. 370). A devise to the testator's wife for life, and at his death to go to his children or their descendants, creates a vested remainder in the children upon the death of the testator although another clause in the will withholds their beneficial use of it until the youngest child becomes of age. Byrne v. France, 131 Mo. 639 (33 S. W. Rep. 178). A devise to the testator's wife for life, and in the event of her dying intestate the property to be distributed "to our said three children equitably and share alike, or to the survivors or survivor of them," vests the estate in the remaindermen at the death of the testator, subject to be divested by their death during the existence of the life estate, or by the making of a will by the life tenant in accordance with the directions of the testator. Thorington v. Thorington, 111 Ala. 237 (20 So. Rep. 407; 36 L. R. A. 385). Where land is devised to a devisee with remainder to his children, the remainder becomes vested upon the birth of the first child, and is in no wise contingent because of the possibility of the birth of other children. Anthracite Sav. Bank v. Lees, 176 Pa. St. 402 (35 Atl. Rep. 197). Where a testator gave his residuary estate to his widow for life and provided that after his death "the estate to be held in trust for my two nieces, * * * share and share alike. To be held in trust until both are of legal age," it was held that the nieces took an absolute estate in remainder, vesting beneficially on their majority. In re Jeremy's Estate, 178 Pa. 477 (35 Atl. Rep. 847). A devise to a testator's wife for her life with remainder to his son P., "on condition that he takes care of my said