#### JOHN H. RICHARDSON v. SARAH A. RICHARDSON et al.

(Filed 27 May, 1910.)

Estates — Contingent Remainders — Waste—Injunction.

An estate devised to the wife of the testator for life and at her death to S., the grandson, for life with limitation over, etc. An action for waste and for forfeiture brought by the grandson against the wife of the testator, the first tenant for life, cannot be maintained, as his interest is contingent upon his surviving the death of the first taker; for if the life estate is destroyed by forfeiture resulting from waste under the statute, Revisal, see. 858, the event upon which the plaintiff is to take his estate in remainder, the death of the first taker, has not happened; and the remedy is by injunction.

Appeal by plaintiff from W. J. Adams, J., at August Term, 1909, of UNION.

Tbe facts are sufficiently stated in tbe opinion of tbe Court.

A. M. 8tacit and J. J. Parker for plaintiff.

Adams, Jerome & Arm-field for defendant.

Walker, J.

Tbis is an action for waste alleged to bave been committed by tbe defendant, who is tbe owner of a life estate in tbe land, by virtue of a devise contained in tbe will of ber bus-band, John Eichardson, wbicb is as follows: “I give and devise to my beloved wife 396 acres of land, more or less, it being tbe borne place wbereon I now live, to bave and to bold during ber lifetime, and at ber death I will and direct that lot No. 1 (as I bave already divided it)’, containing 208% acres, more or less, shall descend to and belong to John Eichardson, son of S. J. Eichardson, during bis lifetime, and at bis death tbe said land shall belong to bis children, if be shall leave any living; and in ease be shall leave no living children at bis death, in that event said land shall belong to bis brothers, viz., James Eichardson, Lathan Eichardson, Eli Eichardson and Frank Eichardson.”

Tbe action is brought by John Eichardson, son of S. J. Eich-ardson, to whom a life estate in remainder was devised in the said will, to take effect at the death of Sarah A. Eichardson, the widow. There was a limitation over at the death of the said John Eichardson to bis children. It is contended by tbe defendant that tbe plaintiff cannot maintain this action, as by the will of John Eichardson he acquired only a contingent remainder, and it is conceded that an action for waste cannot be brought by a contingent remainderman, but, for tbe protection of his right or interest, he must resort to tbe remedy by injunction. Latham v. Lumber Co., 139 N. C., 9.

*706Tbe only question wbicb we deem it necessary to discuss and decide is whether the plaintiff, John Richardson, by the terms of the will acquired a vested or a contingent remainder. There are, according to Mr. Fearne, four kinds of contingent remainders :

1. Where the remainder depends entirely on a contingent determination of the preceding estate itself, as if A makes a feoffment to the use of B till C returns from Rome, and after such return of C then to remain over in fee. Here the partisu-lar estate is limited to determine on the return of C, and only on that determination of it is the remainder to take effect; but that is an event which possibly may never happen, therefore the remainder which depends entirely upon the determination of the preceding estate by it is contingent.

2. The second kind of contingent remainder is where some uncertain event, unconnected with and collateral to the determination of the preceding estate, is by the nature of the'limitation to precede the remainder. Thus, as Lord Coke says, if a lease for life be made to A, B and C, and if B survives C, then the remainder to B and his heirs. Here the want of B’s surviving 0 does not affect the determination of the particular estate; nevertheless, it must precede and give effect to B;s remainder; but as such an event is dubious, the remainder is contingent. In the contingent remainders which fall under this head, the event which makes them contingent does not in any way depend on the manner in which the particular estate determines, as whether it determines in one manner or another, the remainder takes place equally. This distinguishes them from the first sort.

3. The third kind of contingent remainder is where it is limited to take effect upon an event which, though it certainly must happen some time or other, yet may not happen until after the determination of the particular estate. For it is a rule of law that a remainder must vest, either during the continuance of the particular estate or at the very instant of its determination. So that, if the event does not happen during the continuance of the particular estate, the remainder becomes void. Thus, if a lease be made to A for his life, and after the death of B remainder to another in fee, this remainder is contingent, for though B must die some time or other, yet he may survive A, by whose death the particular estate will determine and the remainder become void.

4. The fourth kind of contingent remainder is where it is limited to a person not ascertained, or not in being at the time when such limitation is made. Thus, if a lease be made to one for life, the remainder to the right heirs of A; now there can be *707no such person as the right heir of A until his death, for nem'o est fueres viventisj and A may not die until after the determination of the particular estate; therefore, such remainder is contingent. Again, where an estate is limited to two persons during their joint lives, the remainder to the survivor of them in fee, such remainder is contingent, because it is uncertain which of them will survive.

Vested remainders, or remainders executed, are those by which the present interest passes to the party, though to be enjoyed in the future, and by which the estate is invariably fixed to remain to a determinate person, after the particular estate is spent. The person entitled to a vested remainder has an immediate fixed right of future enjoyment, that is, an estate in prcesenti, though it is only to take effect in possession and pernancy of the profits at a future period, and such an estate may be transferred, aliened and charged, much in the same manner as an estate in possession, as distinguished from one which is vested in interest. The remainder is said to be contingent when it is limited to take effect on gn event or condition which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding particular estate, in which case, as we have shown, such remainder never can take effect. 1 Greenleaf’s Cruise on Real Property (2 Ed.), p. 703 et seq.

In 1 Eearne on Remainders (Ed. of 1845), p. 216, he thus states and illustrates the difference between a vested and a contingent remainder: “It is not the uncertainty of ever taking, effect in possession that makes a remainder contingent; for to that, every remainder for life or in tail is and must be liable; as the remainderman may die, or die without issue before the death of the tenant for life. The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent. For instance, if there be a lease for life to A, remainder to B for life, here the remainder to B is vested, although it may possibly never take effect in possession, because B may die before A; yet, from the very instant of its limitation, it is capable of taking effect in possession, if the possession were to fall by the death of A; it is therefore vested in interest, though perhaps the interest so vested may determine, by B’s death, before the possession he waits for may become vacant.” In commenting upon this passage from Mr. Fearne, this Court, in a very able and learned opinion by Chief .Justice Shepherd in Starnes v. Hill, 112 N. C., 1, thus qualified or explained the language of Mr. *708Fearne: “In support of tbe plaintiff’s contention, we are referred to tbe principle laid down by Mr. Fearne (supra, 217) in a passage wbicb bas often been quoted in text-books and judicial opinions, but seldom accompanied witb tbe explanation of tbe learned author in its immediate connection. It., 216, 217. Tbe language is as follows: Tbe present capacity of taking effect in possession, if tbe possession were to become vacant, and not tbe certainty that tbe possession will become vacant before tbe estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent.’ It is urged that, inasmuch as tbe death of Madara J. (bis wife) is an event which must happen, and as R. 0. Patterson is a person in esse, tbe latter would have tbe capacity of taking tbe possession should tbe preceding estate of tbe said Madara J. be presently determined by her death, and, therefore, under the foregoing rule, bis estate would be a vested remainder. Tbe fallacy of tbe argument may be found in tbe failure to observe that at common law tbe particular estate may be determined, during tbe lifetime of its tenant (as by forfeiture or surrender: Fearne, supra, 217; Tiedeman Real Prop., 401; 4 Kent Com., 254), in wbicb case it is entirely clear that tbe remainder to R. O. Patterson would be defeated, because tbe event upon tbe happening of which bis interest was to vest, to wit, tbe survival of bis wife, would not have transpired during the continuance of tbe particular estate (Fearne, 217; 2 Minor Inst., 170, 171), and it is common learning that tbe contingency must happen during tbe continuance of tbe particular estate or eo instanti it determines. 2 Blk. Com., 168.”

In tbe case we are now considering, tbe plaintiffs seek, by their action, not only to recover damages for tbe waste alleged to have been committed, but to have the life estate of Mrs. Sarah A. Richardson, tbe widow of John Richardson, declared to have been forfeited by reason of tbe waste so committed by her. In other words, we have presented practically and in concrete form the'very example wbicb is given by Chief Justice Shepherd in tbe case to wbicb we have just referred. It is true that there tbe remainder could not vest in interest, or even in possession, unless R. 0. Patterson survived bis wife, and this, by its very nature, was a contingent event, but we do not perceive bow any reasonable or practical distinction can be made between a case where tbe survivorship of one party by another is required to vest tbe remainder in interest and possession, and one where the remainder is limited to take effect, not generally after a life estate, but at tbe death of another.

In this case tbe court entered a judgment of nonsuit at tbe close of tbe evidence and on motion of tbe defendant; but sup*709pose this ruling bad been just tbe reverse of wbat it was at tbe trial, and tbe court bad entered judgment, not only for tbe damages assessed by tbe jury, but for a forfeiture of tbe life estate of tbe widow. Under tbe statute of Gloucester (6 Edw. I.), wbicb we bave adopted (Revisal, sec. 858), it would follow tbat tbe life estate would bave determined before tbe happening of tbe event, namely, tbe death of tbe widow, upon wbicb tbe remainder was to vest in tbe plaintiff. Tbe widow would bave lost her life estate, as tbe plaintiff would bave recovered tbe place wasted, by virtue of tbe statute, but tbe interest in and tbe possession of tbe land would bave vested in him under tbe judgment of tbe court declaring a forfeiture of tbe life estate, and not by virtue of tbe terms of tbe will, as it is evident tbe testator intended tbat tbe plaintiff should bave no vested interest in tbe land until tbe death of tbe widow, and tbat intention of tbe testator must prevail. We bave a case, therefore, where tbe life estate may be determined or destroyed before tbe happening of tbe event upon wbicb tbe estate is limited to tbe plaintiff in remainder, and if we follow tbe rule as laid down in Starnes v. Hill, we must bold tbat tbe remainder to tbe plaintiff was contingent and, therefore, tbat be cannot maintain this action.

Where an estate is limited to A for life, with remainder to B for life, and there is a forfeiture or surrender of tbe first life estate, it determines and tbe estate in remainder becomes immediately vested, as there is nothing in tbe limitation to prevent its vesting at once. But in our case, if tbe first life estate is determined by forfeiture, surrender or otherwise,- and the life tenant survives its determination, tbe .remainder cannot take effect, by tbe express words of tbe will, until tbe death of tbe widow, whereas the imperative rule of the law requires tbat tbe remainder must vest, that is, tbe contingency must happen, during tbe continuance of the particular estate or eo instanti it determines. Tbe life estate is destroyed by tbe forfeiture resulting from tbe waste under tbe statute, and yet tbe event upon wbicb tbe plaintiff is to take bis estate in remainder has not happened. ■ _ •

_ Tbe court below ruled in accordance with tbe views we bave expressed, and finding no error in tbe judgment, we must affirm it.

Affirmed.