For the rule, Edward Feld.
Contra, Robert J. McDermott.
Before Justice Heher, at the Passaic Circuit.
HEHER, J. The rule directs defendant Ann Storms, plaintiff's judgment debtor, to show cause why her "interest" in the residuary estate of Henry Cowan, deceased, should not be sold to satisfy the judgment debt, and, "in the alternative, why the moneys due and accruing from said estate monthly" should not be so appropriated.
The will of the deceased Henry Cowan devised certain of his lands to his executors "during the lives" of his three children, Annie Swift, Lizzie Berdan and Wesley Cowan, "and during the life of the last survivor of them," in trust, "to manage, control and lease the same * * *; to collect and receive the rents, issues and profits therefrom," and, after payment of taxes, assessments, repairs, insurance premiums and other carrying charges, "to divide [the] net income among" said children, "in equal proportions;" and, upon the decease of any of the named children, leaving lawful issue, to pay "the share of said income which such deceased child would have received, if living, * * * to such issue, per
stirpes." It was further provided that, in case any of his said children should die "without leaving issue, or all of the issue of said child" should die "before the death" of his "last surviving child, * * * the share of the income which would have gone to" his "deceased child, or the issue of such deceased child," should "go to" his "child or children, or in case of their death, to their issue per stirpes."
Upon the decease of the testator's last surviving child, the corpus was devised thus: The issue of each child to take, per stirpes, one-third thereof; and, in case any of his said children should "leave no issue surviving them, at time of death of last surviving child, then the share which would otherwise have gone to the issue of * * * said deceased child," was given "to the issue of both of my other children per stirpes."
Wesley Cowan died leaving two children, viz.: the defendant Ann Storms and a son, Henry. Annie Swift and Lizzie Berdan are still living. The judgment debtor's share of the net income of the trust estate is said to amount to $90 monthly, but there is no proof of this. The sheriff levied upon "all the rights, credits, moneys and effects, goods and chattels, lands and tenements" of the judgment debtor, "to wit, onesixth interest in the residuary estate of Henry Cowan and moneys due and accruing from the said estate monthly."
Plainly, the judgment debtor has an estate in remainder in fee in the corpus, vested as to an undivided sixth part thereof, and contingent as to the rest. The contention that her entire interest is contingent is patently unsound. She has a present absolute right to an undivided sixth part of the corpus the instant the particular prior estate shall cease. The distinguishing characteristic of a vested remainder is a present capacity to take effect in possession or enjoyment on the certain determination of the precedent particular estate, rather than the certainty of enjoyment by the remainderman. It is the uncertainty of the right of enjoyment, rather than the uncertainty of its actual enjoyment, that renders a remainder contingent. Den v. Hillman, 7 N.J.L. 180; Den v. Crawford, 8 Id. 90; Price v. Sisson, 13 N.J. Eq. 168; affirmed,
sub nom. Weehawken Ferry Co. v. Sisson, 17 Id. 475; Voorhees v. Singer, 73 Id. 532; In re Clark's Estate, 13 ...