Cole v. Society , 64 N.H. 445 ( 1887 )

The defendants contend that the parties to the marriage settlement did not intend Sargent should take under it unless he survived his wife; and Moorhouse v. Wainhouse, 1 W. Bl. 637 is cited in support of this position. That case is stated as it appeared from the pleadings, the language of the deed in question not being given. It is difficult, from the meagre report of the case, to see upon what evidence the decision was made. In this case there is nothing in the language of the marriage settlement to indicate that the contingency upon which the estate in remainder was to vest in Sargent depended upon his surviving his wife. If the parties intended that he should take nothing except in that event, we should expect to find their intention so expressed in apt words in the written instrument, and not left to be inferred. The failure or omission to insert such language is evidence from which the contrary intent may be inferred. We fail to see any evidence in the written agreement, or in the circumstances of the parties, that their intention was what the defendants claim it to have been.

It is also contended that the remainder settled upon the husband was contingent and not vested. It is the present right of future enjoyment whenever the possession becomes vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, which distinguishes a vested from a contingent remainder. Kennard v. Kennard, 63 N.H. 303; Vandewalker v. Rollins, 63 N.H. 460; Wiggin v. Perkins, 64 N.H. 36; Crosby v. Crosby,64 N.H. 77. Tested by this rule, the remainder settled upon Sargent was a vested remainder. It vested in him immediately on the execution of the settlement and marriage, subject to be devested by the birth of a child to Mrs. Sargent. The terms of the settlement and the circumstances of the parties show that Mrs. Sargent intended to dispose of her whole estate by the settlement, and there is nothing to indicate that she contemplated leaving a part of her estate to descend to her heirs by reason of a doubtful contingency.

The case has been amended so as to show that Mrs. Sargent acquired property after the ante-nuptial agreement was entered into, a portion of the property so acquired being derived from the income of the real estate of which she was seized at the time of her marriage. A question is thus presented, whether the after acquired property is covered by the agreement. The marriage settlement was made, and the marriage took place, before the statutes of 1846 and 1860 in relation to the rights and property of married women were enacted. See Laws of 1846, c. 327, and 1860, c. 2,342. Sargent by the marriage settlement agreed that he would not intermeddle with, claim, or demand any part of his wife's estate during her life, or the lifetime of her parents, but would permit her to hold, manage, and control the same as if the marriage had not taken place. He thereby released his right to reduce to possession her personal estate and his rights as tenant by the curtesy in her real estate. Suppose after the marriage Mrs. Sargent had received a legacy or gift: can there be any doubt that under this ante-nuptial contract she would have been entitled to the possession, control, and benefit of it during her natural life? And suppose her husband under his right at common law had undertaken to reduce it to possession: can there be any doubt it would have been held that he could not interfere with her possession and control of it, upon the ground that the contract gave her the right to it during her life? Or, suppose Mrs. Sargent had at her marriage a promissory note, or a farm: would not the contract cover the interest upon the note, or the income of the farm, as incident to the principal and to the farm? These examples make it clearly to appear, we think, that the after acquired property is included in the marriage settlement. By it she retained the control and management of "the whole of her property, both real and personal, during her natural life." The language is broad enough to include the after acquired property. No reason appears why she should desire to retain the possession and benefit to herself, parents, and children, of the property she possessed at the time of her marriage, and should leave her after acquired personalty to fall into the possession of her husband to become his absolute property, and her after acquired realty to become encumbered by his estate by the curtesy.

The decree to which the plaintiffs are entitled should include the after acquired property, as well as that belonging to Mrs. Sargent at the time of her marriage.

Case discharged.

All concurred.