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Massachusetts Agencies

Vested and Contingent Remainders

Future Interest

Remainders are generally deemed vested and, when they follow a life estate, are generally not considered to be contingent, even though the time for their enjoyment may be postponed until the termination of that estate. In this regard, it is said in Newhall, Settlement of Estates, The Lawyers Cooperative Publishing Company, (Fourth Edition, 1958), §356:

Such phrases as "at her decease" or "upon her decease" and similar phrases referring to the taking effect of the remainder, are held to refer to the time of distribution rather that the time of vesting.

So, too, it is said in Moynihan, Introduction to the Law of Real Property, West Publishing Company (1962), Chapter 5, Section 17:

Words which are conditional in form but which express nothing more than the law implies will not make the remainder contingent. Thus, if A devises to B for life and from and after B's death to C in fee it might be argued that B's death is a condition precedent to C's remainder. But the words "from and after" are construed to refer to the time of enjoyment of possession by C, not to the time of the vesting of C's interest. The courts universally apply a presumption in favor of construing a limitation as creating a vested rather than a contingent interest, and also a presumption in favor of early vesting rather than late vesting. Hence, when an instrument creates a life estate in B and then provides for a remainder in C "at B's death," or "when B dies," or "in the event of B's death such language will not be construed as making the remainder contingent.