Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-12
OREGON SUPREME COURT DECISIONS
Fun Text Published BY Courtesy Of F. Turner Reporter Of tn
Supreme Court.

doubtful or ambiguous. But, treated
by those rules Of construction, which
for ages have been applied, we do
not find any ambiguity in the con-
veyance before us, so far as it re-
lates to the estate conveyed or the
vesting of such estate, and, there
fore, nothing that calls for extrinsic
evidence to aid us in ascertaining
the intent of the grantor The
words used, "do bargain, sell and
convey unto w. A. Rutherford, as
trustee, for my son, James Edsall
Rutherford" taken by themselves,
create a simple trust in favor of
James, the trustee taking the legal
estate, and the cestui que trust the
equitsble estate In the premises, and
it is not disputed that the heirs Of
James take the whole estate, unless
such equitable estate is postponed by
the language of the habendum.
We will now consider whether the
language of the habendum can have
the effect to defeat the vesting of the
equitable estate in the cestul que
trust, at the time of the delivery of
the deed. The habendum reads;
ITO have and to hold the said
above described real and personal
property, together with the appurte-
nances of said real property, unto the
said w. A. Rutherford, in trust for
the use and benefit of my said son.
James Edsall Rutherford, until my
said son shall attain the age of 35
years, at which time the trust hereby
created shall cease, and all property
hereby conveyed shall vest absolute
ly in, and be the property Of my said
son, Jams Edsall Rutherford
1t is we'll known rule of law that
an interest shall be construed to be
vested rather than contingent. We
quote from one Of the highest author
tiles: at Is well knawn general
rule, that an interest shall be con-
strued to be vested, rather than con-
tingent Or, to express the rule more
precisely, that, in doubtful cases, an
interest shall, II it possibly can con-
slstently with other rules Of law, be
construed to be vested in the first in
stance, rather than contingent; but,
IL it cannot be construed as vested in
the first instance, that at least 1t
shall be construed to become vested
as early as possible" Smith, Exec.
Int Sec. 200.
The conveyance in question has
none of the indicia of a contingent
estate. (D There is no estate lin
tied over in case the cestui que trust
fails to reach the prescribed age.
~ There is no reversionary clause
in favor of the grantor or his heirs.
(3) There Is no requirement that the
trustee shall convey the legal title
when the cestui que trust attains the
prescribed age. The trustee is the
mere holder of the legal estate which
passes without further conveyance
when the age limit is reached
While the absence of one or perhaps
all of the matters above enumerated
will not furnish conclusive proof of
an intention of the grantor that the
equitable estate shall not vest i'm
mediately in the cestui que trust, the
absence of all of them certainly
strongly negatives such intention.
Another canon of construction in
cases of this kind is, that If the
grantor does not annex the time to
the grant or gift itself, but merely to
the payment, possession or enjoy
ment, or in other words, If he first
makes a grant or devise unconnected
with any particular age and then by
a distinct sentence or member of a
sentence directs that the beneficiary
be let into possession or enjoyment
when he shall attain given age, the
grant or devise confers an interest
vested in right but not
to take effect in possession until the
of the age or period spec
ified Smith, Exec. Int. Sec, 342.
The author above referred to states
the following as a general proposi-
ton; Where real or personal es-
tate is devised or bequeathed to a
person, and though the vesting in
right or interest at first sight ap-
pears to depend upon the attainment
of a given age or upon the arrival of
occurrence of an event or time which