The opinion
Potter, J.
The questions in this case arise upon the construction of the will of John D’Wolf. On examination of the will and authorities, we conclude—
1. That the estate given to Algernon is a fee simple, subject to the cbndition expressed.
2. That the gift over plainly refers to issue living at his death, and therefore is not void, as referring to an indefinite failure of issue, but is good as an executory devise.
3. That the possibility devised to the sisters is upon a double contingency, — first, upon Algernon leaving no issue living at his death, and second, upon his sisters surviving him.
No provision is made for the issue of any sister who may have died before him ; but the sisters, and those only, who survive him, are to take in fee; and if no sister survives him, then the gift, over, fails entirely.
It is a settled rule that an estate once vested will not be divested, unless all the events take place which are necessary to give effect to the substituted devise. If, therefore, no sister should survive Algernon, the fee once vested in him would not
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be divested. See cases referred to in 1 Jarman on Wills, side' page 750 ; Ibid 783.
Tbe next question is whether, as the sisters now living are the only ones who have a possibility of succession, and as this possibility does not extend to any issue they may leave, provided the sisters themselves do not survive him, their interest may pass by any instrument operating by way of estoppel or release.
A mere naked possibility or expectancy (as for instance, the expectancy of an heir, per Lord Kenyon in 3 Dura. & East. 93, 96,) cannot be assigned at law. But a contingent right, founded upon an instrument already executed, and where the contingency does not depend upon a person not now in existence, being in existence at a particular time, can, at any rate, be released to the
terre tenant,
or person who is in possession by a rightful title. While anciently a conveyance of possibilities to strangers was discouraged as tending to litigation, a release of such interests to the
terre tenant
has been encouraged, for the prevention of litigation and security of titles. 3 Durn. & East. 88;
Miller
v. Emory, 19 N. Y. 384 ;
Winslow
v.
Goodwin,
7 Met. 363 , 379 ; Smith on Exec. Interests, § 751.
The cases of
Pelletrean
v.
Jackson,
11 Wend. 110 , and
Jackson
v.
Waldron,
13 Wend. 178 , were cases where the executory interest was assigned to a stranger, but the authority for these cases has been questioned. See
Jeffers
v.
Lampson,
10 Ohio, 101.
Here the contingent estate is limited to the chances of survivorship of two persons now living. If either' or both survive, they may take. If neither survives, the estate already vested is not divested.
The cases of
Jeffers
v.
Lampson,
10 Ohio, 101, and
Miller
v.
Emans,
19 New York Court of Appeals, 384, are in point. These were cases of releases of the chance of survivorship to one already having an interest. The subject of release of contingencies is freely discussed, and the language of the decisions goes far to overrule the decisions in 11 and 13 Wendell
supra.
The question, whether the married sister, with her husband, can release, is also made. If any doubt existed under § 6 of
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chapter 136 of the Revised Statutes, growing out of the use of the word seized, they are now, by chapter 726, passed January session, A. D. 1868, authorized to convey, not only any of the wife’s estate, of which they are seized in her right, but any real estate of hers, or any interest therein.
¡Decree entered for specific performance of contract.