Suit by Cora E. Baley against John H. Strahan and another. From a decree of dismissal, plaintiff appeals. Affirmed. 4. Wills 629, 634(1)-Remainder vested according to legal meaning of devise not contingent because of subsequent provisions. Law favors vesting of estates, and remainder vested according to legal meaning of words of devise will not be held contingent because of subsequent provisions not necessarily requiring it. 5. Remainders 4-Remainder contingent, If life estate depends on contingency. If continuance of life estate be on some contingency, or if there be some other uncertain and dubious event necessary to be determined before vesting of estate, remainder would be contingent. 6. Remainders John E. Wall, of Quincy, and Scofield & DE YOUNG, J. An amended bill, in lieu of an original bill of complaint, was filed in the circuit court of Adams county by Cora E. Baley, the appellant, against John H. Strahan and Andrew J. Strahan, the appellees, for the partition of certain real estate in A demurrer to the amended bill was sustained. Appellant stood by her amended bill, which was dismissed at her costs. This appeal followed. 4-"Vested remainder" and that county. "contingent remainder" distinguished. Remainder is vested if at every moment during its continuance it becomes present estate, whenever and however preceding freehold Peter Strahan died testate in Adams counestates determine, but is contingent, if fulfill-ty on June 4, 1914, leaving him surviving ment of condition precedent, other than de- Ellen Strahan, his widow, Cora E. Baley, termination of preceding estates, is necessary the appellant, his daughter, John H. Strahan for it to become present estate. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Contingent and Remainder; Vested Remainder.] 7. Wills 634(16)—Remainder is vested, if words giving vested interest are followed by clause divesting it. If condition is incorporated in description of or gift to remainderman, remainder is contingent; but if, after words giving vested interest, clause divesting it is added, remainder is vested. 8. Remainders 4-Uncertainty of right to estate renders remainder contingent. It is not uncertainty of actual enjoyment of estate, but uncertainty of right thereto, which makes remainder contingent. 9. Wills 634 (9) -Remainder to ascertained person on event certain to happen is vested, though subject to defeat by remainderman's death. When person to whom remainder after life estate is limited is ascertained, and event on which it is to take effect is certain to happen, it is a vested remainder, though by its terms it may be entirely defeated by such person's death before termination of particular es tate. 10. Wills 634 (8)-Remainder held to have vested in testator's daughter on his death, and not contingent on her survival of life tenant. and Andrew J. Strahan, the appellees, his sons, and Margaret E. Strahan, another daughter, his only heirs at law. His will was probated on July 22, 1914. By the first section of his will he directed the payment of his debts; by its second section he bequeathed to his wife all his personal property, including money, to be taken by her in lieu of her award; by the third section he gave to his wife "all the use, rents and income of the northwest quarter of the northwest quarter of section 13 and the northeast quarter of the northeast quarter of section 14, "Sixth-I give, devise and bequeath to my daughter Margaret E. Strahan the northwest quarter of the northwest quarter [further describing the property], to have and take possession of the same after the death of my said wife, Ellen Strahan. In case of her death before that time this tract of land shall pass and become the property of my son John H. Strahan." By the seventh section the testator devised the northeast quarter of the northeast quarter of section 14 "to my son John H. Strahan, to have and take possession of the same after the death of my said wife, Ellen Strahan." John H. Strahan was appointed executor. After the probate of her father's Under will devising land to testator's daughter, "to have and take possession of the same after the death of my said wife," to whom he devised life estate, and providing that, in case of daughter's death before such time, "land shall pass and become the property of my son," remainder vested in daughter on testator's death, and, she having conveyed her interest in her lifetime, no interest descended to her heirs on her death, and there was noth-will, on May 2, 1917, Margaret E. Strahan conveyed to her brother John H. Strahan, ing to partition. one of the appellees, by quitclaim deed dated Appeal from Circuit Court, Adams Coun- that day, the land devised to her by the sixth ty; Harry Higbee, Judge. section of the will. Ellen Strahan, the wid For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) ow, died in 1919 or 1920. Margaret E. Stra- time of the vesting of the remainder, while han died shortly after the death of her mother. The question at issue is whether Margaret E. Strahan had any alienable interest in the property at the time of her conveyance to her brother John H. Strahan. Appellant contends that by the will Margaret E. Strahan took only a contingent remainder, while the appellee John H. Strahan insists that the remainder was vested, the possession only being postponed, and that Margaret E. Strahan's interest was subject to divestiture in the event that she died before her mother. If the remainder became vested in Margaret E. Strahan upon her father's death, the quitclaim deed conveyed her interest, nothing remained to descend to her heirs at law upon her death, and consequently there would be nothing to partition. the appellees argue that they have reference solely to the time of taking possession. The identical phrase also appears in the seventh section, which devised the remainder in the other tract to John. In both sections the words "have" and "take" are followed by a single object, "possession." It is not uncommon to find such words as "to have and to hold," "to have and to take," "to take effect and be enjoyed," and similar expressions, in instruments, especially wills, where the same intention could be conveyed by the use of the words "to have," or "to take effect," or "to be enjoyed," without the use of additional words. [2, 3] Blackstone defines a remainder as an estate "limited to take effect, and be enjoyed after another estate is determined." 1 Sharswood's Blackstone's Com. bk. 2, p. [1] The court will consider the will and 163. There must be a precedent particular all its parts in their relation to each other, estate in order to support a remainder. The to ascertain the intention of the testator in term "remainder" is relative, and implies a any particular provision, and give effect to prior disposition of some part of the estate; such intention if it can be done consistently but the particular estate and the remainder with the law. By the third section the wid- constitute one whole, are carved out of the ow was given "all the use, rents and income" same inheritance, and may both vest at the of the real estate devised, "to have and to same time and subsist together. It does not receive the same during her natural life, in follow that an estate in remainder which is Heu of any other rights that she may have subject to a condition is a contingent reby law in real estate." This section only mainder. The condition may be precedent or purports to make provision for the widow subsequent. If the latter, the estate vests during her life, without any suggestion of immediately, subject to being divested by the the vesting of the remainder. The testator happening of the condition; if the former, devised the remainder in one tract uncondi- the remainder cannot vest until that which tionally to his son John. The remainder in is contingent has happened. Haward v. Peathe other tract he devised to his daughter vey, 128 Ill. 430, 21 N. E. 503, 15 Am. St. Margaret in the same language, but he added Rep. 120; Golladay v. Knock, 235 Ill. 412, 85 a sentence to the effect that, if Margaret N. E. 649, 126 Am. St. Rep. 224; Meldahl v. died before his widow, the tract devised to Wallace, 270 Ill. 220, 110 N. E. 354. Margaret should pass and become the prop- [4-7] The law favors the vesting of eserty of John. The persons in the mind of tates, and a remainder vested, according to the testator, as shown by these three sec- the legal meaning of the words of the detions, were his widow, for whom he wished vise, is not to be held contingent by virtue to provide for life, his son John and his of subsequent provisions of the will unless daughter Margaret. The gift of the life es- those provisions necessarily require it. Pintate was the reason for postponing the tak- grey v. Rulon, 246 Ill. 109, 92 N. E. 592; ing of possession by Margaret and John of Knight v. Pottgieser, 176 Ill. 368, 52 N. E. their respective tracts. No reason is appar- 934. If the continuance of the life estate ent from the will, considered as a whole, for were upon some contingency, or if there were postponing the vesting of the remainders. some other uncertain and dubious event necBy the fourth and fifth sections the son An-essary to be determined before the vesting drew and the daughter Cora were bequeathed of the estate, then necessarily the remain$1,000 each. No bequest of personal prop erty was made by the will to either John or Margaret. There was no devise of real estate to either Andrew or Cora. A section of the will was devoted to each child, and there was no reference to any child in any other section except the sixth, by which it was provided that the tract devised to Margaret should pass, to John, if Margaret died before her mother. der would be contingent. Stevens v. Van Brocklin, 295 Ill. 434, 129 N. E. 68. "A remainder is vested if at every moment during its continuance it becomes a present estate whenever and however the preceding freehold estates determine. A remainder is contingent if, in order for it to be become a present estate, the fulfillment of some condition precedent, other than the determination of the preceding freehold estates, is necThe appellant contends that the words "to essary." Gray's Rule Against Perpetuities have," in the phrase "to have and take pos- (3d Ed.) § 9. "If the conditional element is session," in the sixth section, denote the incorporated into the description of or into the gift to the remainderman, then the re-entirely defeated by the death of such permainder is contingent; but if, after words son before the termination of the particular giving a vested interest, a clause is added divesting it, the remainder is vested." Id. § 108; Brechbeller v. Wilson, 228 Ill. 502, 81 N. E. 1094. Because the law favors the vesting of estates, it prefers to construe conditions as subsequent rather than precedent. In the beginning of the sixth section the testator used the words "give, devise and bequeath." If he had not believed that these words disposed of the remainder, he could as readily have used language to denote a condition precedent, and then have employed the words "give, devise and bequeath" to dispose of the remainder to John upon his sister's death before that of the widow; but in providing for that contingency he used the words "shall pass and become the property of," which are entirely consistent with the prior devise of the remainder subject to a condition subsequent. Appropriate terms, which are ordinarily used to create a condition precedent to the vesting of a remainder, are absent here. The sixth section contains no express provision which postpones the vesting of the remainder until the death of the widow. No condition precedent prevented the vesting, immediately upon the testator's death, of the remainder devised to John by the seventh section of the will. estate. An estate in remainder is not rendered contingent by the uncertainty of the time of enjoyment. The right and capacity of the remainderman to take possession of the estate if the possession were to become vacant, and the certainty that the event upon which the vacancy depends must happen some time, and not the certainty that it will happen in the lifetime of the remainderman, determines whether or not the estate is vested or contingent." 23 R. C. L. 501, 502. [10] We believe the words "to have and take," properly construed, refer to possession only, and not to the title and possession, but that the words "shall pass and become the property of" refer to the title. The remainder was not devised to Margaret upon the contingency that she survive her mother, but on the theory that her death before that of her mother constituted a condition subsequent, on the happening of which the estate already vested in her was to be divested, and pass to and become the property of her brother John. Authorities cited by counsel for appellant contain expressions such as "would have vested," or other conditional elements which prevented the vesting of the estate until the happening of some contingency. The statement in Cummings v. Hamilton, 220 Ill. 480, 77 N. E. 264, and Knight v. Pottgieser, supra, that "a fee in the remainder, subject to be divested by the death of the person seized prior to the death of the life tenant, is not, for any practical purposes, to be distinguished from a remainder contingent upon the remainderman surviving the life tenant," is not applicable to this case. Here the interest vested in Margaret could be conveyed, while if there were only a contingent interest there would be nothing alienable. Kenwood Trust Co. v. Palmer, 285 Ill. 552, 121 N. E. 186; Friedman v. Friedman, 283 Ill. 383, 119 N. E. 321; Du Bois v. Judy, 291 Ill. 340, 126 N. E. 104. [8, 9] The devise of the remainder to Margaret by the sixth section is in identical language, except that there is added, by a complete and independent sentence, the condition that, if she should die before the widow, the land should become the property of John. The widow was the life tenant. Her death was certain to occur; the time of her death only was uncertain. Margaret, the person to whom the remainder was devised, was ascertained. She survived the widow, and the life estate terminated. Had her death occurred prior to the termination of the particular estate, it would not have made the remainder contingent. It is not the uncertainty of the actual enjoyment of the estate which Since the remainder devised to Margaret renders a remainder contingent; it is the un- was vested, and not contingent, and was concertainty of the right to the estate which veyed in her lifetime to her brother John, no makes it so. "When the person to whom a interest descended to her heirs upon her remainder after a life estate is limited is death. There was therefore nothing to parascertained and the event upon which it is to tition. The decree of the circuit court of take effect is certain to happen it is a vested Adams county is affirmed. remainder, although by its terms it may be Decree affirmed. (145 N.E.) (314 III. 170) (Supreme Court of Illinois. Oct. 28, 1924. Rehearing Denied Dec. 3, 1924.) DUNCAN, C. J. Appellee, as administrator with the will annexed of the estate of Lucy Pope Lachat, deceased, filed his bill in the superior court of Cook county for a construction of the fifth clause of the will of 1. Wills 104-Uncertainty of complete ful- the decedent, making as parties defendant fillment of intention of testator does not render intention indefinite. thereto Louis Otto Zander, Harry J. Grabo, Longley Taylor (the latter as the Christian That there is uncertainty of complete ful- Science committee on publication), the people fillment of intention of testator does not render intention uncertain and indefinite. 2. Charities 34-Clause providing for donations by trustee of $500 to building funds of Christian Science churches held not to limit application of churches organized at time of death. Clause of will leaving property in trust, and directing that sums of $500 be paid by trustee into building funds of Christian Science churches until total sum is exhausted, held not to limit application of fund to churches organized at time of death. of the state of Illinois, and the unknown devisees under the will. Appellants, Louis Otto Zander and Harry J. Grabo, the only heirs at law of the festatrix, answered the bill, alleging that the fifth clause of the will was void, and praying that the property mentioned therein might be decreed to pass as intestate property. They also filed a crossbill. On the hearing a decree was entered, declaring the fifth clause of the will valid, and appointing a trustee to administer the trust created in said clause, and dismissing the cross-bill for want of equity. Lucy Pope Lachat died on March 31, 1921, seised of real property valued at $5,000, and possessed of personal property valued at $10,000. By her will Joseph E. Otis was 3. Charities 21 (5)—Bequests in trust for purpose of aiding building of Christian Science churches held not indefinite and uncertain. Bequests of fund in trust, directing pay-named executor and trustee. He declined to ment of sums of $500 toward building of loyal branches of Christian Science church, held not indefinite and uncertain, so as to render clause void. 4. Perpetuities 8(1) - Bequest in aid of church building charitable, not in contravention of rule against perpetuities. Bequest of fund in trust, to aid in construction of churches, created charitable trust, and was not in contravention of rule against perpetuities; gift being in præsenti. 5. Perpetuities 8(1)—Unconditional gift to charity regarded as immediate, and not subject to condition precedent. If intention of testator is to make unconditional gift to charity, gift will be regarded as immediate, and not subject to any condition precedent, and therefore not within scope of rule against perpetuities. 6. Charities 22(5)-Gift in trust held not void, as lacking definite object. Gift in trust to trustee, to further cause of Christian Science by aiding in building of loyal branches of church, was not void, as lacking certain definite object. Appeal from Superior Court, Cook County; Charles M. Foell, Judge. Bill by Charles F. Harges, administrator with will annexed of the estate of Lucy Pope Lachat, deceased, against Louis Otto Zander and others, for construction of the will. From the decree, defendants appeal. Affirmed. Milton O. Naramore, of Chicago, for appellants. Bangs & Frankhauser, of Chicago, for pellee. ap act as such executor and trustee, and appellee was appointed administrator with the will annexed. After first directing that all of her just debts and funeral expenses be paid, she bequeathed to her nephews, Louis Otto Zander and Harry J. Grabo, of Chicago, and Charles F. Harges, of Chicago, the sum of $100 each. By the fifth clause of the will she devised and bequeathed to Otis, as frustee, all of her estate and property remaining after the payment of her debts and funeral expenses and the legacies aforesaid, in trust for the purposes therein mentioned, with the power, during the period of the trust, to hold, manage, lease, control, care for, and protect such trust property, and collect the income therefrom in accordance with his best judgment and discretion, with full power to sell and convey the same, and to reinvest the proceeds in real estate, high-grade stocks, railroad, public utility, and other corporate bonds, in government, state, county, drainage, and municipal bonds, and other bonds of a similar character, or in any other interestbearing securities or property. The further directions to the trustee were in the following language: "Out of said trust estate said trustee shall, for the purpose of furthering the cause of Christian Science as taught and promulgated by Mary Baker Eddy in her work Science and Health, with Key to the Scriptures,' make the following payments until the entire estate is exhausted: To the building fund of any Church of Christ, Scientist, of Chicago, Illinois, which is a loyal branch church of the mother church, the First Church of Christ, Scientist, in Boston, Mass., and which may at the time of my death be building a church edifice or which may thereafter build a church edifice in the city of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Chicago, the sum of five hundred dollars ($500), each. government, and that no conference of churches shall be held, "unless it be when our churches located in the same state convene to confer on a statute of said state, or to confer harmoniously on individual unity and action of the churches in said state." [1] The first contention of appellants is that the language of the fifth clause of the will is so indefinite and uncertain that it is impossible of execution. Their argument is that in 39 years only 14 Christian Science churches have been built in Chicago, and that in order that a full distribution of the trust fund may be made there must be a rapid and continuous growth of the Christian Science faith in Chicago, and that such presumption is unreasonable. Even if this court could say that such presumption is unreasonable, there would be only an uncertainty of complete fulfillment of the intention of the testatrix. The meaning of the language of the will and the intention of the testatrix would not thereby be rendered uncertain and indefinite. "Should any such church so building desire that $500 be given to its building fund it may apply to said trustee therefor, and thereupon the trustee shall forthwith pay said sum of $500 to said church, but said trustee shall not wait for such request to be made, but shall ascertain through the proper channel-i. e., the Christian Science committee on publication of Illinois-what churches are from time to time entitled to distribution of said fund hereunder." No successor in trust to Otis was named in the will, and no method or authority given for the appointment of a successor in trust. The Christian Science committee on publication in Illinois consists of one man, Longley Taylor, who was made a defendant to the original and cross bills and filed answers. The testatrix at the time of her death was a Christian Science practitioner and had been for 20 years. She was a member of the Second Church of Christ, Scientist, of Chicago. The proof shows that there is in Boston. Mass., a church known as First Church of [2, 3] It is also argued that by the lanChrist, Scientist, of Boston, Mass., which was guage of the fifth clause of the will the testafounded by Mary Baker Eddy and is known trix limits the application of the fund to as the mother church. The teachings of churches organized at the time of her death, Christian Science were first introduced in and that by reason thereof the clause is Chicago about 1883. In 1886 the first church made uncertain and impossible of execution. was organized in that city. Since that time The language used in this clause clearly there have been 15 other churches organized means that $500 may be given to the building in Chicago that are loyal to the mother fund of any Church of Christ, Scientist, of church. At the time of the death of testa- Chicago, which is at the time of the gift a trix 12 or 13 of those churches had church loyal branch church, whether that time be at buildings and one other was constructing a or after the death of the testatrix. Appelchurch. Three of those buildings were erect- lants arrive at their conclusion, we think, by ed between July 26, 1918, the date of the ex-giving too narrow a construction to the last ecution of the will, and March 31, 1921, the date of the death of testatrix. Two of such churches have started buildings in the city of Chicago since the death of the testatrix, and another is at work on a building project. The churches erected are of stone and brick and are very substantial structures, but the nature of the communities around some of the older edifices has changed since their erection, so that their location is no longer the most desirable. The church manual, which was introduced in evidence, provides that a member of the mother church who obeys its by-laws and is "a loyal, exemplary Christian Scientist working in the field" is eligible to form a church, but that "a branch church" shall not be organized with less than 16 loyal Christian Scientists, 4 of whom are members of the mother church, and that this membership shall include at least one active practitioner, whose card is published in the list of practitioners in the Christian Science Journal. The manual sets out several rules governing the conduct of services in the mother and branch churches. It provides, also, that each branch church shall be distinctly democratic in its government, and that no individual and no other church shall interfere with its affairs; that each church shall have its own form of words in the first paragraph of the fifth clause above quoted, to wit: "And which may at the time of my death be after build a church edifice in the city of Chibuilding a church edifice or which may therecago." The pronoun "which," twice used in this clause of the will, has for its antecedent "any Church of Christ, Scientist, of Chicago," etc. To arrive at the clear meaning of this language, we are at liberty to repeat before the second pronoun "which" its antecedent, which is legitimate in arriving at a correct construction and meaning of this clause. It will then read thus: "To the building fund of any Church of Christ, Scientist, * which may at the time of my death be building a church edifice, or to the building fund of any Church of Christ, Scientist, which may thereafter build a church edifice." It is also contended that what is "a loyal branch church" is uncertain and indefinite. The record shows that among Christian Scientists a loyal branch church is one that is organized and conducts its services in accordance with the manual of the mother church. This is clearly the meaning that the |