113 U. S. 340; Gibbens v. Gibbens, 140 Mass. 102; Darling v. Blanchard, 109 id. 176.

Where the payment, distribution or division is postponed for the convenience of the fund or property, as, for instance, to let in a prior gift for life to another, the estate will be vested, and not contingent. Ducker v. Burnham, 146 Ill. 24; Reed's Appeal, 118 Pa. St. 215.

All contingent estates of inheritance, as well as springing and executory uses, and possibilities coupled with an interest, where the person to take is certain, are transmissible by descent, and are devisable and assignable. Santa Clara Academy v. Sullivan, 116 Ill. 391.

A general residuary devise will operate as an execution of a power to dispose of property by will, unless there is something to show that such was not the testator's intention. Amory v. Meredith, 7 Allen, 397; Willard v. Ware, 10 id. 253; Bangs v. Smith, 98 Mass. 270; Sewall v. Wilmer, 132 id. 131.

RUNNELLS & BURRY, for appellee Francis V. Balch:

A remainder is said to be vested where a present interest passes to a party to be enjoyed in the future, so that the estate is invariably fixed in a determinate person after the particular estate terminates, while a contingent remainder is one limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event. Haward v. Peavey, 128 Ill. 430.

If a limitation over depends upon an event which may not happen, the estate is contingent. Farnam v. Farnam, 53 Conn. 261; Wilkinson v. Sherman, 45 N. J. Eq. 413.

Future estates are contingent where the person to whom or the event upon which they are limited to take effect remains uncertain. Beardsley v. Hotchkiss, 96 N. Y. 203; Crooke v. County of Kings, 97 id. 449.

It is not uncertainty of enjoyment in the future, but uncertainty of right of enjoyment, that makes the difference between a vested and contingent interest. Wiggin

v. Perkins, 64 N. H. 36; Crosby v. Crosby, id. 77; Kennard v. Kennard, 63 id. 303.

When the gift is in a direction to pay at a future time, and the will does not indicate an intention to make a present gift, the remainder will be held contingent. Farnam v. Farnam, 53 Conn. 261; Strode v. McCormick, 158 Ill. 142; Traver v. Schell, 20 N. Y. 89; Manice v. Manice, 43 id. 303; Warner v. Durent, 76 id. 133; Smith v. Edwards, 88 id. 92; Griffin v. Shepard, 124 id. 70; Crooke v. County of Kings, 97 id. 421; Beardsley v. Hotchkiss, id. 203.

GEORGE F. WESTOVER, for appellees John H. Moriarty and Elizabeth L. H. Wood.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:

Francis V. Balch, trustee under the will of John Hancock, filed the bill in this case for construction of a provision of said will under which he had held property in trust for Franklin Hancock, and for instruction as to his duties as trustee, and partition of real estate so held in trust. The court decreed that appellant had no interest in the property, and this appeal was prosecuted.

John Hancock, of Boston, died April 1, 1859, leaving the will in question, dated April 1, 1857, and the controversy arises upon the following clause: "I give and bequeath one-fifth part of my estate to a trustee, upon trust, to invest the same and appropriate so much of the income thereof as he, in his discretion, shall think needful for the support of my son Franklin. It is my will that the trustee may pay over to my son his portion of my estate at such time and in such sums as he may deem expedient, desiring him to consult the interest and welfare of my son, and that my son, in case his portion of my estate is not paid to him as aforesaid, shall have power to dispose of the same, by will, in the family. I direct that at the decease of my son, if his portion of my estate should not

have been paid over to him as aforesaid, or if he shall not have disposed of the same by will, the whole sum remaining in the hands of the trustee shall be divided among my other children, to-wit, George, Charles Lowell, Elizabeth Lowell and Washington, in the same way, subject to the same trusts and powers upon which they, respectively, receive their portions of my estate. It is my will that my son may appoint his own trustee."

Charles Lowell Hancock, to whom a remainder was given by this provision of the will, died in 1890, in the lifetime of Franklin Hancock, before the expiration of the life estate, and left a will, by which, after other bequests, he devised and bequeathed the residue of his estate, real and personal, to appellant, providing that the Hancock professorship should be first amply provided for from time to time, and then the balance should be applied to the general purposes of the college. Franklin Hancock, the owner of the equitable life estate, afterward died, in 1893, intestate, without receiving any of the principal of his portion, and, having made no will, of course did not exercise his power to dispose of the same by will. The main question in this case is whether the remainder limited to Charles Lowell Hancock passed by his will to appellant; and if it was a vested one, there is no claim that it would not so pass although he died before the termination of the life estate.

The law always gives preference to vested remainders, and a remainder will be held to be vested unless a condition precedent to its vesting is clearly expressed. In construing wills a remainder will be held to be vested unless a contrary intention on the part of the testator is clearly manifested. (4 Kent's Com. 204; Scofield v. Olcott, 120 Hl. 362; Kellett v. Shepard, 139 id. 433; Ducker v. Burnham, 146 id. 9.) A contingent remainder is one that is limited to take effect either to a dubious or uncertain person or upon a dubious or uncertain event. It is limited by the instrument creating it, either to a person not

yet ascertained or not in being, or so as to depend upon a dubious and uncertain event which may never happen. (2 Blackstone's Com. 169; 4 Kent's Com. 406.) It is an estate which is not ready, from its commencement to its end, to come into possession at any moment when the prior estate may happen to end, and if it is at any time ready to come into such possession it becomes a vested remainder. The uncertainty which distinguishes it is not the uncertainty whether the remainder-man will ever enjoy it, but the uncertainty whether there will ever be a right to such enjoyment. If the person to take a remainder is in esse and ascertained, and it is to take effect by words of express limitation on the determination of the preceding particular estate, it will be vested. Sco'field v. Olcott, supra.

Here, so far as the will itself is concerned, the legal title is given to the trustee and the equitable life estate to Franklin Hancock, with remainder to the four children, among whom was Charles Lowell Hancock. These persons to whom the remainder was given were determined and in being, and had a present capacity of taking the estate in remainder at the death of John Hancock, if the life estate in Franklin had then terminated. There was no uncertainty as to who should take the remainder, and it was not limited to dubious or uncertain persons. So, also, the time when the remainder would come into possession unless divested was one which must necessarily occur in the efflux of time. It is true that in the will there is a provision that the trustee or Franklin might exercise a power which would divest the remainder. The power conferred upon Franklin was to dispose of the share in the family; but it is well settled that such a power of appointment does not prevent the vesting of an estate in default of an exercise of the power, and in such a case the estate vests subject to be divested by the execution of the power. There is no estate limited under the power until it is exercised and the appointment made,

and in default of the appointment the estate is vested although the power exists. There cannot be any doubt that the power in Franklin to dispose of the share by will in the family did not prevent the vesting of the remainder in Charles Lowell or render it contingent. 4 Kent's Com. 324; 2 Sugden on Powers, chap. 2, sec. 4.

A further provision is, that the trustee might exercise a power which would divest the remainder, which was by paying over to Franklin his portion of the estate at such time and in such sums as the trustee might deem expedient. This was a power to enlarge or increase the estate in Franklin and merge the life estate in the fee. This power given to the trustee is not different in its nature or effect from the authority given Franklin to dispose of the share in the family. The one was a power to give it to Franklin, and the other a power in him to bestow it upon some other member of the family. We can not see that it is material in whom the power was vested or how it was to be exercised-whether by will or by turning over the estate to Franklin. If this power of the trustee had been executed it would have converted the life estate of Franklin into a fee in respect to any part or so much of the estate as the trustee might have turned over, and defeated the remainder in Charles Lowell to that extent. The mere conferring of the power, however, did not operate as a limitation, and none would arise. until the power should be exercised. Where a limitation is only to be effected by the exercise of a power, there is no limitation until the power is exercised, and the mere fact of its existence does not suspend other provisions. It is a nullity until raised by the execution of the power. (Fearne on Contingent Remainders, 221.) To be contingent the remainder is to be dependent upon or await an occurrence precedent to its vesting. In Railsback v. Lovejoy, 116 Ill. 442, it was held that a power of sale during the existence of a life estate had nothing whatever to do with the vesting of the remainder, but that the estate