These respondents concede that there is another line of cases "holding that 'heirs' in connection with a gift of a remainder interest means heirs determined as of the time of the decedent's death", but that such cases "are readily distinguishable from the present one." Those cases are Grosvenor v. Bowen, 15 R.I. 549; Green v. Edwards, 31 R.I. 1; Roberts v. Wright, 48 R.I. 139; Kenyon, Petitioner, 17 R.I. 149; Oulton v. Kidder, 128 A. 674 (R.I.); Goodgeon v. Stuart, 50 R.I. 6, decided in 1929. On the other hand, the respondents, who urge that the word "heirs" in the present will should be construed in its ordinary legal sense, contend that the three last above-cited cases particularly resemble the instant cause.
It is well established in our decisions that a remainder, although vested in right, may be divested upon the happening of an event before the remainder vests in enjoyment. Of this nature are remainders which the court has held to be vested but liable to be divested by the exercise of a power of disposition given to the life tenant, ( Moore v. Dimond, 5 R.I. 121; Grosvenor v. Bowen, 15 R.I. 549) or to be divested, wholly or in part, by the exercise of a power of sale given to a trustee for the benefit of the life tenant. Kenyon, Petitioner, 17 R.I. 149.
The fact that possession of the estate could not be taken till after the death of the first taker does not preclude the remainder from being held to be vested. Grosvenor v. Bowen, 15 R.I. 549; Chafee v. Maker, 17 R.I. 739. We perceive no reason why the general rule should not be applied in the instant case.
We find a number of cases presenting situations analogous to the case under consideration, holding in effect that the remainder vested, subject to be defeated on the happening of a certain contingency. Boatman v. Boatman, 198 Ill. 414; Vandewalker v. Rolins, 63 N.H. 460; Grosvenor v. Bowen, 15 R.I. 549; Farnam v. Farnam, 53 Conn. 261. These cases, in so far as they are based on a construction of the instrument as showing an intent that the condition should not be a condition precedent, fully support our position here. Being of the opinion that the testator intended the "grandchildren" to take a vested remainder at his death, we reverse the decree of the lower court and remand the cause.
In accordance with former decisions of this court Mr. Chapin upon the death of Mrs. Hill by reason of the provisions of her will received a vested interest in said land subject to be divested upon the death of her son leaving a child or children surviving, and further subject to be divested in the event that the son left no surviving children, but in his will exercised the power of appointment conferred by the will of his mother. Moore v. Dimond, 5 R.I. 121, at 129; Grosvenor v. Bowen, 15 R.I. 549. Under somewhat analagous provisions of a will it was held in Kenyon, Petitioner, 17 R.I. 149, that a devise of a remainder after an equitable life estate was vested at the testator's death although the trustees were empowered to use the whole or any part of the trust estate during the life of and for the benefit of the equitable life tenant.
It has been so held in other jurisdictions. In re Hancock, 2 Ch. 173. Foakes v. Jackson, 1 Ch. 807. Leggett v. Doremus, 10 C.E. Green, 122, 127. Brown v. Renshaw, 57 Md. 67, 79. Grosvenor v. Bowen, 15 R.I. 549. This principle prevails notwithstanding the general rule that appointees by exercise of a power take, not through the person making the appointment, but through the donor of the power. Where the execution of the power is voluntary on the part of the donee, his conduct may be such as to prevent the exercise of the power.
Rogers v. Rogers, 11 R.I. 38, was in similar terms. So also Grosvenor v. Bowen, 15 R.I. 549. Spencer v. Greene, 17 R.I. 727, was an application of the well-settled rule that when futurity is not annexed to the substance of the gift, but only to the time of payment, the right vests immediately. In that case the uncertainty was the death of a nephew.
He could not under the power given him in the will of his father, by his own will at his death, defeat a deed he might now make or that the sheriff might make for him. "It is contrary to the spirit of our law to hinder a person sui juris in the management of property that is altogether his own. [Dado v. Maguire, 71 Mo. App. 642; Underhill on Trusts (Am. Ed.), p. 370, art. 57, and notes; Sears v. Choate, 146 Mass. 395; Grosvenor v. Bowen, 15 R.I. 549.]" Under the doctrine announced in the foregoing cases, we would be compelled to sustain appellant's contention and reverse the judgment of the trial court in this case.
Nor does the existence of an unexecuted power of appointment interfere with the vesting of the remainder. ( Doe v. Martin, 4 Durn. East, 39, 65; Smith v. Lord Camelford, 2 Ves. Jr. 698; Sandford v. Blake, 45 N.J. Eq. 247; Grosvenor v. Bowen, 15 R.I. 549; Root v. Stuyvesant, 18 Wend. 257, 268.) Section 31 of the Real Property Law (Laws of 1896, chap. 547) provides: "The existence of an unexecuted power of appointment does not prevent the vesting of a future estate, limited in default of the execution of the power."
To the same effect is Smith v. Death, 56 Eng. Reprint, 937. In Grosvenor v. Bowen, 15 R. I. 549, 10 Atl. 589. there was a bill for specific performance, the question of title being raised under a will which gave property to A. for life, on his decease to such person as he might appoint by his will, and in default of such appointment to the heirs of testatrix; it was held that he might release his power to appoint to the tenants in remainder or to extinguish it by joining with the other complainants in a deed conveying the bargained lot to the defendant in fee simple and therein releasing the power to him. There is a full discussion of the law in this case.