Opinion
6 Div. 859.
January 12, 1928.
Appeal from Circuit Court, Jefferson County; William M. Walker, Judge.
John R. Boyle, of Birmingham, for appellants.
A vested estate is unaffected by the rule against perpetuities. Gray's Rule against Perpetuities (3d Ed.) pp. 201, 205-210, 283, 320-322, 972-974. A vested estate is measured by the definition that it is the present capacity of taking effect in possession, if the possession were to become vacant. Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; Smaw v. Young, 109 Ala. 528, 20 So. 370; Kumpe v. Coons, 63 Ala. 448; Gindrat v. Western Ry., 96 Ala. 162, 11 So. 372, 19 L.R.A. 839; Code 1907, § 3401; Lyons v. Bradley, 168 Ala. 505, 53 So. 244. The estate created by the will is an estate to an individual and a class. Gray's Rule against Perpetuities § 110.
Edward T. Rice, of Birmingham, for appellees.
A devise of land to a daughter-in-law and grandchildren cannot extend beyond three lives in being at the date of the conveyance — death of testatrix — and 10 years thereafter. Code 1923, § 6922; Lyons v. Bradley, 168 Ala. 505, 53 So. 244; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565; Henderson v. Henderson, 210 Ala. 73, 97 So. 353. If the fatal period may elapse before what is to be done can be done, the consequence is the same as if such must inevitably be the result. Possibility and certainty have the same effect. Lyons v. Bradley, supra; Ould v. Washington Hospital, 95 U.S. 303, 24 L.Ed. 450; Gray on Perpetuities (3d Ed.) § 214. So long as A. T. Mehaffey lives, he in law is capable of having more children. Gray, Rule against Perpetuities, §§ 215, 376; 30 Cyc. 1483; Jee v. Aufley, 1 Cox, 324.
This appeal involves a construction of sections 5 and 6 of the will of Mrs. Mehaffey deceased. These provisions bequeath the real estate to the children of the son of the testatrix then in being and to any unborn children of her said son, but provides that it shall not be divided or sold until the youngest child (born or unborn) should arrive at the age of 21 years.
It also provides in paragraph 5 that, in the event any of the devisees, born or unborn; die before attaining the age of 21 years without issue, his or her share shall go to the survivor. It will therefore be observed that the final vesture of the title will be in abeyance and uncertainty for 21 years and 9 months after the death of A. T. Mehaffey. In other words, should A. T. Mehaffey marry again and beget children, they will take under the will, but will have to attain the age of 21 years before a final vesture of the title, and, for that matter, one of the existing devisees was only 4 years of age at the death of the testatrix, and it was more than 10 years before his title could be settled, even if unborn grandchildren had not been included.
Section 6922 of the Code of 1923 (which is as much of a puzzle to the profession now as when enacted over a half century ago; see paper of E. W. Faith, Esq., Ala. Law Journal, vol. 2, No. 3, p. 172) reads as follows:
"Lands may be conveyed to the wife and children, or children only, severally, successively, and jointly; and to the heirs of the body of the survivor, if they come of age, and in default thereof, over; but conveyances to other than the wife and children, or children only, cannot extend beyond three lives in being at the date of the conveyance, and 10 years thereafter."
The first part of this provision does not apply, as the bequest is not to the wife or the children, but to the grandchildren of the testatrix. Therefore it is governed by the last part of the provision, and violates same, because it extends beyond 10 years after the life of three persons in being. In other words, should either or all of the living children of A. T. Mehaffey die before attaining their majority and without issue, and said Mehaffey should beget other children, the interest of the deceased children would go to them, and if any of the unborn children should die before attaining their majority their share would go to the survivor, but could not finally vest or be ascertained until the youngest of said unborn children had issue or became of age. We therefore think, and so hold, that the will violates the last part of said section 6922. Lyons v. Bradley, 168 Ala. 505, 53 So. 244; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565; Ashurst v. Ashurst, 181 Ala. 401, 61 So. 942.
The will in the case of Montgomery v. Wilson, 189 Ala. 209, 66 So. 503, and which was upheld by this court, is different from the one in hand. There the will merely directed that the estate be held together from 1911 to 1916, less than 10 years, and the devise to the two grandsons and over, in case they both died without issue, did not extend the period of final ascertainment beyond three lives in being and 10 years thereafter.
Whether the named devisees took a fee, or the perpetuity resulted in the intestacy of the testatrix as to this property, and her son, A. T. Mehaffey, took by descent, is of no consequence, as the complainant has conveyance from the surviving devisees, as well as A. T. Mehaffey, and the trial court properly held that the unborn children of said A. T. Mehaffey had no title or interest in the property, and the decree of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.