On appeal from the former Court of Chancery.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Ackerson, J.
[2 NJ Page 95] This appeal involves the construction of the following paragraphs of the will of George W. Hawk who died on August 18, 1919:
"3. To my beloveth wife Charlotta Wolfe Hawk all rentals and income and use of all my Property on South Main Street town of Phillipsburg County of Warren State of New Jersey as long as she lives.
"4. At her deth [ sic ] the children shall have share and share alike."
The testator was survived by his widow, Charlotte W. Hawk, and two sons, Willis B. and Marshall Hawk, both of whom predeceased their mother, Charlotte.
Willis B. Hawk died intestate on April 12, 1924, leaving a widow, now Elsie H. Fitzgerald, and two daughters, Audrey Hawk, now Audrey C. Fields, and Elsie Hawk, now Elsie Orr, all of whom are the defendants herein.
Marshall Hawk died on February 10, 1944, leaving a will by which he gave all of his property to his mother, Charlotte W. Hawk, who died on March 6, 1947, leaving a will by which, after a few small gifts of money and specified articles of personal property, she gave the residue of her estate to Bertha Leidy Cody, Jennie Leidy, and Mary Woolf, wife of Garner Woolf, share and share alike. These residuary legatees of Charlotte W. Hawk, and the executors of her will, filed the present bill for the construction of George W. Hawk's will and are the appellants herein.
The sole question for solution is whether or not, under the above quoted paragraphs of his father's will, Marshall Hawk took a vested estate in remainder in the property thereby devised, in common with his brother Willis, immediately upon the testator's death, so that an undivided one-half thereof passed under Marshall's will to his mother, Charlotte W. Hawk, and by her will to her residuary legatees, the complainants herein.
The court below answered that question in the negative holding that Marshall Hawk, having predeceased his mother, was not seized of any interest in said real estate at the time of his death. It is from that part of the decree the present appeal is taken.
A vested remainder is defined as one to which there is a present fixed right to future enjoyment of property though that enjoyment be postponed until the expiration of a prior
estate. Barrett v. Barrett, 134 N.J. Eq. 138, 158 (Ch. 1943). A contingent remainder on the other hand, is one in which the person to take is not in esse or ascertained, or the event upon which enjoyment is to take place is uncertain, or both. It is the uncertainty of the right of enjoyment, and not the uncertainty of actual enjoyment, that renders a remainder contingent. Kahn v. Rockhill, 132 N.J. Eq. 188, 191 (Ch. 1942); affirmed, 133 Id. 300 (E. & A. 1943); Hopper v. Gurtman, 126 N.J.L. 263, 272 (E. & A. 1940); King v. First National Bank of Morristown, 135 N.J. ...