Opinion of the Court.

id. 141; Harper v. Union Manf. Co. 100 id. 225; Eames et al. v. Doris, 102 id. 350; Thompson v. Meisser, 108 id. 362; Queenan et al. v. Palmer et al. 117 id. 619. And the same construction has been placed upon like language in New York and Pennsylvania. Slee v. Bloom, 20 Johns. 683; Briggs v. Penniman, 8 Cow. 395; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Matter of Empire City Bank, 18 N. Y. 218; Lane's Appeal, 105 Pa. St. 57.

Second-The next question is, should it affirmatively appear that appellant was a stockholder when the cause of action accrued, or is it sufficient that he was a stockholder when suit was brought? In our opinion, it is sufficient that appellant was a stockholder when suit was brought. The liability is because of being a stockholder-that is, because of the ownership of stock. (Wheelock v. Kost, 77 Ill. 298.) As was said in Brown v. Hitchcock, 36 Ohio St. 681, "the expression, 'all stockholders,' must be regarded, in the absence of any legis lative indication to the contrary, as ineluding not only those who were such at the time the indebtedness was incurred, but all those who successively stand in their shoes in respect to the same stock." The liability being because of the ownership of stock, it follows the stock into whosesoever hands it may go, and whoever purchases it, does so at the risk of this liability; and, in consonance with this view, we have held, that the liability once discharged, the stock is thereafter free of any further liability on account of ownership. Thebus v. Smiley, 110 Ill. 316.

The rule is thus stated in Thompson on Liability of Stockholders, sec. 90: "But in the absence of special statutory provisions, the general rule, applicable alike to the English joint stock company and the American corporation, is, that liability as contributors, or to creditors, attaches not merely to those who are members at the time or before the debt was contracted, but to those who were such, either, first, when by reason of the stoppage, dissolution or winding up of the com

Opinion of the Court.

pany, the right to transfer shares ceased; or, second, in the case of direct proceedings by creditors against shareholders, when the right of the creditors against the shareholder became fixed in an appropriate proceeding." See, also, to like effect, Middleton Bank v. Magill, 5 Conn. 28; Curtis v. Harlow, 12 Metc. 3; Holyoke Bank v. Bernbow, 11 Cush. 183; Johnson v. Summerville Dr. Bl. Co. 15 Gray, 216; McCulloch v. Moss, 5 Denio, 567; Matter of Empire Bank, 18 N. Y. 223; Johnson v. Underhill, 52 id. 203; McClaren v. Franciscus, 43 Mo. 464.

The fact that we have held in Buchanan v. Meisser, 105 Ill. 638, and Thompson v. Meisser, 108 id. 359, that the stockholders, in such cases, are in effect partners, is not inconsistent with this view, since every assignment of stock makes a new partnership, and the new partnership assumes the debts of the old partnership; and the rule in such cases permits. the creditor to pass by the partnership primarily liable, and sue that having assumed the debt. See Lindley on Partnership, 455, 456, and notes.

In Culver v. Third Nat. Bank, 64 Ill. 528, the present question was not considered. It was sufficient, there, that there was a right of recovery under the averments of the declaration. The remarks regarded as intimating contrary to the present ruling, were unnecessary to a decision of the question then being considered, and were not intended to announce any rule of law. Fuller v. Ledden, 87 Ill. 310, merely decides that the stockholder who owns stock when the debt is incurred, is liable; but that is not inconsistent with the liability of the owner of the stock at the time suit is brought. (Thebus v. Smiley, supra.) Hull v. Burtis, 90 Ill. 213, turned on the question whether the suit should have been in the name of the corporation, or in that of the creditor. And so, in our opinion, the demurrer was properly overruled as to both counts of the declaration.

The judgment is affirmed.

Judgment affirmed.

MARTHA E. SCOFIELD et al.

v.

ORVILLE OLCOTT et al.

Filed at Springfield March 23, 1887.

1. WILLS-vested or contingent estate-rule of construction. It is a rule of construction, that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has, by very clear words, manifested an intention that they should be contingent on a future event.

2. SAME-equitable estate-vested remainder therein. There may be a vested remainder in an equitable as well as in a legal estate. Where a testator devises the legal title of his property to his executors, for the use of his wife for life, or until her marriage, with the remainder to his son, the latter will take a vested equitable estate in remainder. And the fact that legacies are to be first paid after the determination of the particular prior estate, will not render the devise to the son contingent.

3. SAME-vested estate defined—and of the distinction between a vested estate and one depending upon a contingency. An estate is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. It gives a legal or equitable seizin. It takes effect, in interest and right, immediately on the death of the testator, although it may not at that time take effect in possession and enjoyment; and if it be a remainder, it can not take effect, in possession and enjoyment, until the death of the devisee for life, or other determination of the particular estate.

4. It is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. When the event on which the preceding estate is limited, must happen, and when it also may happen before the expiration of the estate limited in remainder, that remainder is vested. It is also vested when it is limited to a person in esse and ascertained, to take effect, by words of express limitation, on the determination of the preceding particular estate.

5. A testator devised all his estate in trust to his executors, a part of which, after some legacies, was to be converted into money, and his son to be paid $12,000, and directed that the balance be held by them during the life of the testator's widow, or so long as she remained unmarried, paying her the rents, issues and profits, and then directed that upon her death or marrige the balance be sold and converted into money, and certain legacies be paid to his three sisters, after which the executors were required to convey, assign

Brief for the Appellant Scofield.

and deliver all the rest of the estate to his son. The son died before his mother, leaving her his sole heir: Held, that the son took a vested equitable estate in remainder, and upon his death it passed to his mother.

6. SAME-personal legacy-whether it vests on the death of the testator, or not until a later period. In regard to the vesting of personal legacies the payment of which is postponed to a period subsequent to the death of the testator, the general rule is, that when there is no original gift, but only a direction to pay at a future time, the vesting will be postponed until after that time. If futurity is annexed to the substance of the gift, the vesting is suspended; but if it appears to relate to the time of payment, only, the legacy vests instanter.

7. There is a distinction between a gift of a legacy to a person to be paid to him at a future time, and a direction to pay or transfer the legacy to him at a future time. In the former case, the legacy vests immediately; but when the gift is merely by a direction to pay to him at a future time, the legacy does not vest forthwith, and until the time arrives he will have no vested interest.

8. Even though there be no other gift than in the direction to pay or distribute in futuro, yet if such payment or distribution appears to be postponed for the convenience of the fund or property, as, when the future gift is postponed to let in some other interest, (as, when there is a prior gift for life, or after payment of debts,) the gift in remainder vests at once; but when the payment is deferred for reasons personal to the legatee, the gift will not vest till the appointed time.

9. SAME-leaving a part of an estate intestate-whether so intendedrule of construction. The courts will adopt any reasonable construction of a will so as to give it effect to dispose of the testator's entire property, rather than to hold an intention to die testate in part and intestate as to other property.

APPEAL from the Superior Court of Cook county; the Hon. HENRY M. SHEPARD, Judge, presiding.

Messrs. HOLDEN & FARSON, for the appellant Martha E. Scofield:

That the testator did not intend his son, William, should have a present vested estate in the residue, is evidencedFirst-By the legacy of $12,000, in presenti, to him, together with all the testator's personal effects.

Second-By the vesting of the entire estate in the trustees, with directions to them to convey, assign and deliver to Wil

Brief for the Appellant Scofield.

liam at a future time. Steib v. Whitehead, 111 Ill. 251; Kirkland v. Cox, 94 id. 400.

Third-By the gift of the life income to the widow, showing that, at all events, she was not to have the residue. Welsch v. Savings Bank, 94 Ill. 202.

Fourth-By providing for the death of legatees before the time of payment, in the sixth clause of the will, and failing to make a similar provision in the case of the residuary gift to William, in the seventh clause, although the gift to him was subject to the same contingencies. Travis v. Morrison, 28 Ala. 500.

Fifth-By the direction to "convey, assign and deliver," in futuro, to William, which constitutes the only gift to him of the property in dispute. Travis v. Morrison, 28 Ala. 500; Lambert v. Harvey, 100 Ill. 338; Welsch v. Savings Bank, 94 id. 199.

Sixth-By the fact that by contrary construction the inheritance of the heirs will go to strangers. King v. Crawford, 17 S. & R. 120.

Where the whole scope of a will shows an intention not to give vested interests to the children, no argument of supposed necessity or expediency will be allowed to accelerate the vesting. Hotchkin v. Humfrey, 2 Madd. 65.

The fact that our construction would cause an intestacy as to the residue, can not control the vesting. Anderson v. Felton, 1 Ired. Eq. 59; King v. Crawford, 17 S. & R. 120; Lambert v. Harvey, 100 Ill. 338.

That there is no distinction, as to vesting, between a bequest of the residue and an ordinary pecuniary legacy, see Addison v. Busk, 14 Beav. 459; Shum v. Hobbs, 3 Drewry, 93; Hanson v. Graham, 6 Ves. 248; Leake v. Robinson, 2 Mer. 386, and various cases postponing the vesting of a residue, hereinafter cited.

The same general principles which regulate the vesting of devises of real estate, apply, to a considerable extent, to gifts