Bishop v. Horney

Delaplaine, J., delivered the opinion of the Court. This is an appeál from a decree of the Circuit Court for Queen Anne’s County, ratifying an audit allowing $2382.67 to the trustees of the trusteed assets of the Centerville National Bank of Maryland, mortgagee, following the sale of certain real estate under partition proceedings. The real estate, which was a part of the property owned by Elizabeth J. Keating at the time of her death in 1862, was devised by her to her three daughters for life, with remainder to their issue, provided that, in event of the death of any daughter without issue, her share should go to the surviving sisters or sister, and in event of the death of all three without issue, then to the sons of the testatrix. There was a further provision in the will that, should any daughter leave a child surviving at the time of her death, but the child should die before reaching the age of twenty-one, its share should be distributed as if the child had never lived.

On September 19th, 1924, after two of the daughters of the testatrix had died without issue, the surviving daughter, Martha J. Weedon, as the sole life tenant, and ³⁵⁵ her four children, as the remaindermen, together with their spouses, executed their mortgage upon the real estate to the Centerville National Bank of Maryland to secure an indebtedness of $16,150. Mrs. Weedon died in 1936. William T. Bishop, the appellant, who has held a judgment for $3003.39 against Ada R. Rolph, adult remainderman, since February 28th, 1931, contends that the mortgage does not convey any interest of the remainder-men, and therefore the distributive share of Mrs. Rolph should be applied upon his judgment. He relies upon the principle of the common law that contingent estates are “neither devisable, descendible, alienable by voluntary conveyance nor subject to execution.” But a contingent estate is a mere possibility or expectancy, not coupled with an interest, where the person to take is not ascertained. 4 Kent’s Commentaries, 261.

The remainder interests of Mrs. Rolph and the other children of the life tenant were vested at the time of the execution of the mortgage. It is well recognized that where there is a devise to a person for life, with remainder to his children, the remainder is necessarily contingent until one of such children is born; for a contingent remainder is one which is either (1) limited to a person not in being or not certain and ascertained, or (2) so limited to a certain person that his right to the estate depends upon some contingent event in the future. But when the child is born, and the remainderman is then ascertainable, the remainder immediately becomes vested, for a vested remainder is one which is limited to a person in being, whose right to the estate does not depend upon the happening or failure of any future event. 2 Blackstone’s Commentaries, 164; 4 Kent’s Commentaries, 202; Tiffany on Real Property, sec. 136; Miller, Construction of Wills, sec. 213. So, it has