
    WIDOW VESTED WITH A LIFE ESTATE SUBJECT TO BEING DIVESTED BY REMARRIAGE.
    Common Pleas Court of Montgomery County.
    William Burkhardt's Executrix v. Henrietta Decker et al.
    
    Decided, June 29, 1909.
    
      Wills — Construction of, where there was a Devise to the Widow' during Her Life or Widowhood — With the Residue in Equal Shares to the Children — And a Devise over to the Heirs of Children Who Die prior to the Death or Remarriage of the Widow — Life Estate — Remainders and Expectancies — Tested Interests Subject to be Divested by the Happening of a Contingent Event.
    
    The widow of- the testator, whose will is construed in this casé, ,is held ■.to take a life estate, subject to being divested by remarriage; the children take a vested interest, subject to being divested by the happening of a contingent event; expectancies are devisable by will. .
    
      John■ W. Kreitzer, Fitzgerald (& Kprigg, for plaintiff.
    
      Kennedy,, Munger & Kennedy, contra.
    
      
       Affirmed by the Circuit Court as to all findings.
    
   SNEIDIKER, J.

This is an action to construe the will of William Burkhardt, deceased. The matters and things asked to be construed by plaintiff in her petition, and the queries propounded by plaintiff’s counsel in their brief, are responded to by the ■ following:

In the first instruction requested, plaintiff asks the court what interest if any Susanna Burkhardt, legatee, under the will, has in the estate of William Burkhardt, deceased, she having died prior to the-distribution of the estate of William Burkhardt, and prior to the death or intermarriage of his widow.

The second instruction is as to where the fee of the real estate which the said deceased testator, William Burkhardt, had and was seized of at the time of his death is vested.

The third instruction is when ■ and in what manner the. executrix is permitted to make distribution of the estate of the deceased testator.

The fourth instruction is whether in event of the death of any of said deceased testator’s children leaving surviving him or her child or children, she as the executrix in making distribution may. make distribution to said child or children of any of such of his children as may die prior to. the distribution of decedent’s estate:

The fifth instruction is whether the bequest made to her in the will, excludes her from-having a year’s support allowed her by the. appraisers of. said estate, and whether she is authorized to pay to herself any such 'allowance in addition to the provisions made for her by the terms of said testator’s last will and testament.

In reference to the first inquiry, we find by reference to -Item 2 of the will that the testator gave, devised and bequeathed to his wife, Margaret Burkhardt, for and during her natural life, provided she does not again marry, all his estate and property of every kind and description, etc.; and in the event that his wife should again marry, then and in that event the will directs that she should receive the same share and proportion.of his estate that she would have received had he died intestate.

Item 3 of the' will provides:

“At the death or intermarriage of my s-aid wife, I will and direct that all my estate and property of every kind and description shall be equally divided between my children, Henrietta Decker, Susanna Burkhardt, Louis Burkhardt, Carrie Burkhardt and Amelia Burkhardt share and share alike, and in the event that any of my said children shall die prior to the death or intermarriage of my said wife, leaving heirs of his or her body,'then: and in that event I will and direct that the share or portion of my estate which would have gone to- him or her shall be paid to his or her heirs, ’ ’

Items 2 and 3 of the will are a devise and bequest to' the testator’s wife for life or during widowhood, and of the residue in equal shares to his children with a bequest and devise over to the heirs of the body of his children should said children die prior to the death or intermarriage of his wife.

It is apparent that each of the children who survived the testator took vested interests in their, respective shares. These vested interests are subject to be divested by death leaving issue of their body during the life or widowhood of the widow. If the children survive the life tenant their estate. is not taken away. If.not, the bequest over takes effect.. If, however, the children die prior to the death of the life tenant without heirs of their body, their representatives are entitled to their share for the reason that the event had not happened in which their interests was liable to be divested..

This view is supported in the 2d Hare, Eng. Chan. Reports, page 268, in the case of Gray v. Garman. In that case there was a gift by the testator of his real and personal estate to his wife for life, and the residue to be equally divided between her brothers and sisters, and in case any of them should be dead at-the time of her decease leaving issue, such issue was to stand in their parents place. The vice chancellor in passing upon the case held in response to a question as to whether all the seven brothers and sisters of the wife who survived and two who died without issué in the lifetime of the widow were entitled to participate in the same residue, that, “on this question, I have no hesitation in saying that the representatives of the brothers and sisters of the wife, who died after the testator but in the lifetime of the widow leaving no issue, are entitled to shares in the residue. The gift to the brothers or sisters who survived the testator was determinable only on one event — their death leaving issxie; that event did not happen and their interest in the gift was therefore not taken away.’’

Also see as bearing upon the question, Harvet et al v. McLaughlin et al, 1 Price, 264.

In regard to the second inquiry, as to the realty. The remainder here is to the children, not to the heirs of the body of the children. The particular estate is for the life or until the remarriage of the wife. The fee is vested in the children, subject to being terminated by their death without issue of the body prior to the widow’s death or remarriage. Neither the remaindermen (the children named) nor the event upon which the remander is limited to take effect (the death of the wife) are uncertain; therefore the remainder is vested and not contingent. A contingent remainder is where the estate in remainder is limited to take effect either to a dubious or uncertain person, or upon a dubious or uncertain event, so that the particular estate may chance to be determined and the remainder never take effect. A vested remainder is where the estate is invariably fixed to remain to a determinate person after the particular estate is spent.

In answer to the fourth inquiry, it is sufficient to say that distribution should be made strictly in accordance with the provisions of the will and subject to the approval of the probate court. All distribution unless under special provisions in the will should be at death or intermarriage.

In answer to the fifth inquiry, counsel needs no instruction; the law is clear. Section 6040, Revised Statutes; 3 O. S., 369; 18 O. S., 234.

Now, as to the queries by counsel.

(a.) What estate does Margaret Burkhardt, the widow, take under AYilliam Burkhardt’s will?

She takes a life estate subject to be divested by remarriage.

(6.) What interest have the children in Item 3 of said testator’s will before the death or remarriage of Margaret Burk-hardt ?

They have a vested interest subject to be divested by the happening of a contingent event. The estate of the heirs of the body of the children is not a remainder, but hangs upon a conditional limitation. As we have determined, the children have a vested fee and a remainder is an estate so limited as to come into effect and enjoyment at the natural expiration of the prior estate less than the fee. Here the estate is held by the children as a fee limited in its duration by the happening of the condition or contingent event of dying with heirs of their body prior to the death or remarriage of the wife. As soon as that happens, if at all, their estate ceases and the residue of the fee passes like a remainder over to the devisee (the heirs of their b.ody) who by the devise are to .take upon the happening of such event. -If this event does not happen, the fee in the children is uninterrupted.

(c.) What effect would the last will and testament of any of the devisees and legatees named in Item 3 of said testator’s will have upon the estate of William Burkhardt undistributed?

It would only direct the distribution or the vesting of the interest of such devisee or legatee.

(d.) Are the estates or interests' of.the devisees and legatees named in Item 3 of said testator’s will contingent or vested remainders ?

Vested. See foregoing construction and authorities; also see 33 O. S.; 128.

(<?.) Where is the fee to the real estate of the testator during the life or widowhood of Margaret Burkhardt, his widow ? •

In his children, their heirs, assigns or legatees, subject to the life estate of the widow, unless said children have died prior to the death of said widow or her remarriage leaving heirs of their body.

(f.) Does or does not the executrix hold the whole of the estate, both personal and real, in trust, to be used by her and disposed of according to her pleasure, for her support and maintenance during her life or widowhood?

Individually she holds as life tenant only.. As the executrix she is a trustee governed by the law and provisions of the will. Item 4 bears upon this inquiry.

(g.) Are expectancies or remainders devisable by will?

They are. Every remainder is an expectancy and even an executory devise is a species of remainder.  