The word "vested," as applied to real estate, implies a present interest therein, and a remainder is therefore vested in one when he or his heirs have the right to the immediate possession, whenever or however the preceding estates may determine.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 1460.]

2. PERPETUITIES GIFTS-REMOTENESS.

Where the event which makes a testamentary gift absolute must occur at or before the expiration of a life in being, the vesting of the gift is not too remote.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Perpetuities, § 4.]

3. WILLS-VESTED INTERESTS.

Where there is no uncertainty in the capacity of a devisee to take, the devise is vested in him, though there is an uncertainty in the happening of the event on which the devise is conditional.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 1464.]

4. SAME CONSTRUCTION-ESTATES ACQUIRED. Testator gave his residuary estate to trustees to pay the income to his wife until a daughter attained 25 years, when a half should be paid to her, and provided that if the daughter should die leaving issue the half of the estate should vest in such issue if the wife should be living; if not, the whole should pass to the issue. The daughter at testator's death had no issue. Held, that the gift to the issue was an executory devise, and issues born after testator's death would take contingent remainders during the daughter's life.

Testator gave his residuary estate to trustees to pay the income to his wife and daughter, and provided that, if the daughter should survive the wife, after attaining the age of 25, the whole estate should vest in her, and, should the wife survive the daughter dying without issue, a half of the estate should be divided equally between grandchildren at the death of the wife. Held, that the gift to the grandchildren was an executory devise at the death of the testator and continued so until the death of the daughter, and on her death without issue during the life of the wife the half of the estate vested in the grandchildren then living, subject to the equitable life interest of the wife.

Case Certified from Superior Court, Providence County.

Bill by Leonard K. Storrs, trustee under the will of George Burgess, deceased, against Mary MacKie Burgess and others for the con

struction of the will of the deceased. Case certified to the Supreme Court pursuant to Court & Practice Act 1905, § 338. Decree rendered.

Dexter B. Potter and Aaron H. Latham, for complainant. Green, Hinckley & Allen, H. Charles Royce, and John F. A. Merrill, for respondents.

DOUGLAS, C. J. This is a bill in equity brought by the trustee under the will of George Burgess, late of Gardner, Me., to obtain a construction of certain provisions of said will affecting the disposition of certain real estate in the city of Providence, where. of said testator died seised. The bill was brought in the superior court, and the case, being ready for hearing for final decree, was certified to this court for determination under the provisions of section 338 of the Court and Practice Act of 1905. The testator died April 27, 1866, leaving a will, duly probated, by which, after making a few small bequests, he gave all the residue of his estate as follows:

"I give the residue of my estate, real and personal, in trust, to my said brothers, Frederick Burgess and Alexander Burgess, with authority to sell, change and reinvest the same at their discretion; and I hereby appoint that they shall hold the same in trust for my dear wife, and my beloved daughter, Mary Georgiana Burgess, as follows:

"The whole income to be paid to my dear wife, if she should survive and remain unmarried, till my daughter shall attain the age of twenty-five; and should my daughter be removed by death before that age and without being married, then the whole income to be paid to my dear wife throughout her own lifetime;

"When my daughter shall attain the age of twenty-five, the half of the income to be paid to her; and also to be held in trust for her and used for her benefit, should my dear wife, at any time previous to her attainment of that age, be herself married a second time.

"Should my dear wife die before my daughter attains the age of twenty-five, the whole income to be held in trust for my daughter and used in her behalf, till she attains that age; and then to be transferred to her with the whole estate, and the trust to cease;

"Should my daughter be married and depart this life, before the age of twenty-five leaving issue, then at her death the half of the estate hereby bequeathed to the said trustees to become vested in such issue, if my dear wife should still be living; if not, the whole to pass to such issue and the trust to cease;

"Should my dear daughter, married or unmarried, attain the age of twenty-five half the income to be paid to her, and half to her mother, till the death of the one or the other; and then, and thereupon.

"Should my daughter survive her mother,

the whole estate to vest in her, and the trust to cease; and

"Should my dear wife survive our dear daughter, she dying without issue, the whole income to be paid to my dear wife during her lifetime, and at her death the estate to be divided into two equal parts; one of which shall be transferred to such charitable or religious purposes as she may direct, or if she make no direction, then to the trustees aforesaid of the fund for the support of the episcopate of the diocese of Maine, to constitute a fund for the assistance of missionaries and other clergymen of the said diocese, and to be applied under the direction of the bishop and standing committee, especially for the relief of the sick, infirm or aged clergymen in the said state, without regard to any division of the diocese; and the other half to be divided equally amongst the grandchildren of my deceased father;

"Should my dear wife survive our daughter, she leaving issue, then at the death of my wife, the remaining half of the estate to pass to such issue and the trust to cease."

The daughter of the testator, Mary Georgiana Burgess, died under the age of 25, intestate and without issue, on May 1, 1873, leaving her mother, Sophia Kip Burgess, surviving her. The latter died July 7, 1904. The only question is as to the construction of the clause of the residuary devise, supra, which we have italicized. At the death of the testator, on April 27, 1866, there were 15 living grandchildren of the testator's deceased father. At the death of the testator's daughter, Mary Georgiana Burgess, on May 1, 1873, two of these grandchildren, namely, said Mary Georgiana Burgess and Anna Burgess Kingsbury, had died, and another granddaughter, Christiana M. Burgess, had been born, leaving the grandchildren at that time 14 in number. At the death of the testator's widow, Mary Kip Burgess, on July 7, 1904, six more of the grandchildren had deceased, leaving them 8 in number. The widow died testate, and by her will appointed the trustees of the Diocesan Fund in the Diocese of Maine, a corporation established under the laws of Maine, as the beneficiary under the will of her husband of the half of the trust estate left to her direction, and directed that said half of the trust fund should be transferred and paid over to it for the purposes of the BurgessNeely Endowment Memorial Fund.

It is conceded by all the parties in interest that this appointment was valid and effectual, and that the half of said fund is to be paid and transferred to said corporation accordingly. The contest in this case is between the representatives of certain grandchildren who had deceased prior to July 7, 1904, on the one part, and the grand children who were living at the death of the testator's widow, July 7, 1904. The question presented is: As of what time is the class who take under the description "grandchil

dren of my deceased father" to be ascertained-at the death of the testator, at the death of his daughter, or at the death of his widow?

Counsel for the eight grandchildren surviving at the death of the testator's widow contends that the devise vested in these grandchildren only, and cites the decision of the Supreme Judicial Court of Maine which has so held with respect to the personal estate. The decision was not accompanied with an opinion, and therefore gives us little assistance. We make no question that it was a correct application of the law relating to personal property, but it is not necessarily a precedent for dealing with the real estate. The word "vested" as applied to real estate implies a present interest in the land. Hawkins on Wills, 221 et seq., approved by Prof. Gray; The Rule Against Perpetuities, 76, § 100, 101, where it is said: "Since contingent remainders have been recognized, the line between them and vested remainders is drawn as follows: A remainder is vested in A. when, throughout its continuance, A., or A. and his heirs, have the right to the immediate possession, whenever and however the preceding estates may determine"-citing Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl. 503; Starnes v. Hill, 112 N. C. 1, 9, 16 S. E. 1011, 22 L. R. A. 598. The uncertainty which makes a gift contingent may be in the capacity of the devise to take or in the happening of an event upon which the gift is conditional. Uncertainty in the happening of the event which makes the gift absolute determines the application of the rule against perpetuities. In this case the uncertainty was one which must be resolved at or before the expiration of a life in being, and hence the vesting in this sense was not too remote. Where there is no uncertainty in the capacity of the devisee to take, though the devise may be in the first sense contingent, it is "transmissible," and in this sense is called "vested." Whether the gift in the present case is vested in this sense is the question before us. It is obviously contingent in the first sense.

Under the provisions of this will, it was possible for the equitable fee of the residue to vest in possession ultimately either (1) in the daughter, (2) in her issue, or (3) onehalf in the nominee of the mother, or the charity named by the testator, and one-half in the grandchildren of the testator's father. At the death of the testator, the daughter had no issue, so that the gift to issue was an executory devise and never vested in either sense, because no issue ever came into being. If issue had been born after the death of the testator, they would have taken contingent remainders during their mother's life. Alverson v. Randall, 13 R. I. 71. The daughter and the class of grandchildren were in being and competent to take, if the event upon which the gift was conditional should be decided one way or the other. The case

has been argued as if the gifts to the daughter and to the grandchildren were alternative contingent remainders expectant upon the life estate of the mother; but, while the literal effect of the testator's words is so, the legal effect seems to us to be different. A fee is given to the daughter if she shall attain the age of 25 and survive her mother. The rule laid down in Hawkins on Wills, 240, is: "If real estate be devised to A. 'if,' or 'when,' he shall attain a given age, with a limitation over in the event of his dying under that age, the attainment of the given age is held to be a condition subsequent and not precedent, and A. takes an immediate vested estate, subject to be divested upon his death under the specified age. Edwards v. Hammond, 1 B. & P. N. R. 324, n; Broomfield v. Crowder, 1 B. & P. N. R. 313; Doe d. Roake v. Randoll, 5 Dow. 202; Phipps v. Ackers, 9 Cl. & F. 583. And if the devise be to A. if or when he shall attain a given age, with a limitation over upon his death under that age without issue, A. takes a vested estate, defeasible only in the event of his death without issue under the specified age. Phipps v. Ackers, 9 C. L. & F. 583." In Weston v. Weston, 125 Mass. 268, the rule was applied to a gift to which the condition was annexed that the donee should survive another person. In Kelso v. Cuming, 1 N. Y. Surr. R. 392, real estate was devised to C. after a life estate, "if he should live until he is twentyone or marry. In case of his death under twenty-one, unmarried, then to V." C. died under 21 and unmarried. Held, that the fee had vested in C. and was not contingent upon the arrival at the age of 21 or his marriage.

We think the rule applies to the gift to the daughter in the present case, and that she took a vested equitable remainder in fee subject to be divested by her death under the age of 25 or before her mother; the words of the testator "should my daughter survive her mother, the whole estate to vest in her and the trust to cease," being construed to mean vest in possession. "Words expressive of future time are to be referred to the vesting in possession, if they reasonably can be, rather than to the vesting in right." Kenyon, Petr., 17 R. I. 159, 20 Atl. 296. The gift to the grandchildren, then, being of an interest limited to commence after the expiration of a fee was an executory devise at the death of the testator and continued so until the death of the daughter. As such it was not a transmissible or vested interest. De Wolf v. Middleton, 18 R. I. 810, 813, 814, 26 Atl. 44, 31 Atl. 271, 31 L. R. A. 146; Brown v. Williams, 5 R. I. 309, 316. Then the devise to the class became absolute and gave them an equitable remainder in fee in half the real estate expectant upon the equitable life estate of the widow. Gray, Perpet. § 114, note 5; Craig v. Stacey. Ir. Term Rep. 249.

We find nothing in the will to indicate any

preference in the mind of the testator for either class of the grandchildren. His gift to them seems to be a last resort to keep the estate in the line of the descendants of his father, from whom it is implied that he received it. His first wish is that his daughter and her issue shall ultimately have the estate, but that suitable provision shall be made from the income for his widow as long as she lives. If his primary intention is frustrated, he gives one half the estate to charity, and the other half to the grandchildren of his father. Doubtless, he expected, as proved to be the case, that some of these numerous grandchildren would outlive the time when the estate would vest in possession in his daughter or forever pass from her and her issue, and, if so, his alternative desire would be accomplished. Further than that his mind does not seem to have gone.

Our conclusion is therefore that, upon the death of Mary Georgiana Burgess, May 1, 1873, the equitable remainder in one-half of said trust estate, subject to the equitable life interest of Sophia K. Burgess, vested in said 14 grandchildren who were then living, and that the trustee should now be directed to transfer one-half of the real estate held in trust, including the rents thereof which have accumulated since the death of said Sophia K. Burgess, to the trustees of the Diocesan Fund in the Diocese of Maine; and one-half of said real estate, with the accumulated rents thereof, to such of the said 14 grandchildren as are now living per capita and to the legal representatives of such said 14 grandchildren as have deceased per stirpes.

The council of defendant town recommended to the electors that they authorize the council to make certain improvements in the town building, and that plaintiff's bid of $2,250 for the work be accepted, and the work awarded to it. The financial town meeting, acting on the report, passed a resolution appropriating $2,250, or so much thereof as was necessary for the improvement of the town building, to be expended under the supervision of the town council, as recommended in its report. At a subsequent meeting of the council, a resolution to award the contract to plaintiff was rejected, and plaintiff brought mandamus against the council to compel the execution of the contract. Held, that the acts did not constitute a contract, since the

If a contract is so far completed as to entitle a party to any relief, he has an adequate remedy at law, and hence mandamus will not lie.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Mandamus. § 8.]

Appeal from Superior Court, Providence County.

Mandamus by the Putnam Foundry & Machine Company against the town council of the town of Barrington. From an order of the superior court sustaining a demurrer to the petition, plaintiff appeals. Appeal dismissed. Judgment affirmed, and petition remanded.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

George H. Huddy, for petitioner. Alfred S. Johnson and Arthur P. Johnson, for respondent.

JOHNSON, J. This is a petition for a writ of mandamus to compel the town council of the town of Barrington to cause to be executed a contract in writing for the reconstruction of the heating apparatus of the town building of said town of Barrington. Said petition is based upon the following facts, as to which there is no dispute: Prior to the 16th day of August, 1906, the then town council of the town of Barrington invited certain dealers in heating apparatus, including the Putnam Foundry & Machine Company, to submit bids for the reconstruction of the heating apparatus of the town building of the town of Barrington. Several such bids were submitted, including one by said Putnam Foundry & Machine Company, based upon certain plans and specifications submitted therewith, under date of August 16, 1906; said bid being for the sum of $2,250. Said town council, after considering said bids, made the following report: "The heating of the town building as a whole has never been entirely satisfactory. This has been due in part to a lack of sufficient radiation. For the last two or three years it has been more difficult, although the same quantity of fuel was being used. A committee from your council called in the aid of several experts in heating to see if some change could not be made to secure better results. After a careful examination the changes deemed necessary by them varied considerably, as was shown by their bids. One firm, however, presented a bid for a complete reconstruction of the whole system. The plan outlined by this company was the most satisfactory

to this council because it entered into detail and was thorough and clear. But the amount needed and the extreme importance of the work being done thoroughly, if at all, made it seem wise to us to present the mattér to the electors of the town for their action. Therefore we recommend to the electors that they authorize the new council to make a thorough reconstruction of the heating system in the town building, that new boilers, extra radiation where needed, and such changes as were outlined in the specifications accompanying the bid of the Putnam Foundry & Machine Company- and we further recommend that the bid of the aforesaid company, dated August, 1906, of $2,250, be accepted and the work awarded to them. Our reason for these recommendations are these: That company gave the only satisfactory and reasonable solution of the matter. The present boilers are not deemed of sufficient capacity or strength to bear the additional radiation, because of the wornout or congested condition of parts of the same, and the plain, definite plan given by this company reveals the fact that they know what is needed and will give it to us." The financial town meeting of said town, held November 6, 1906, acting upon said report of said town council, passed the following resolution: "Resolved, that the sum of $2,250, or so much thereof as may be necessary, be and hereby is appropriated for the reconstruction and renewal of the heating and ventilating apparatus in the town hall building. Said sum to be expended under the su| pervision of the town council, as recommended in their report of to-day. Resolved, that the town treasurer be authorized to hire a sufficient sum to meet the above expenditure." The petition alleges that, relying upon the action of the town council and of said financial town meeting, the petitioner had procured the necessary materials for the fulfilling of said contract, and had expended considerable sums of money for drawings and other services incidental to the installation of said heating apparatus, and has always, from the time of the acceptance of said bid by said town, as aforesaid, by said resolution aforesaid, been ready and willing, and is now ready and willing, and hereby offers, to enter upon and complete said contract and to install said heating apparatus in accordance with said plans and specifications and bid of August 16, 1906. At a meeting of the town council of said town, on December 15, 1906, the following motion was made: "That the contract for the reconstruction of the heating and ventilating system of the town building be and hereby is awarded to the Putnam Foundry & Machine Company of Providence, R. I., as per the specification and accompanying bid of said company under date of August 16, 1906." Upon being put to vote, this motion was lost by a vote of three to two.

On February 9, 1907, the petitioner made

a formal demand in writing upon said town council to execute said contract, but said town council has neglected and refused so to do. The respondents demurred to the petition upon the following grounds: (1) That the statements contained in the third paragraph of said petition are inconsistent and contradictory; (2) that the petitioner, under the allegations of the petition, has no such legal right as to enable it to maintain the petition; (3) that the petition fails to show any neglect of duty or refusal to perform any acts required of the respondents under the law; (4) that the petition does not show clearly what was the recommendation of the former town council to the electors of the town; (5) that the petition does not show when the sum appropriated by the financial town meeting for the reconstruction and renewal of the heating and ventilating apparatus in the town hall building was to be expended; (6) that the petition shows that the resolution passed by the financial town meeting called for the exercise of discretion and official judgment on the part of the respondents; (7) that the petition shows that it is an attempt to obtain a review or reversal of a decision already made by said respondents in a matter involving discretion; (8) that the petition shows that it is an attempt to establish a right, and not to enforce a right, already established. The court below sustained the demurrer on the ground that the resolution of the financial town meeting did not constitute an acceptance of petitioner's offer and was not a mandatory direction to the town council. From the decree sustaining the demurrer, the petitioner appealed, assigning the following reasons of appeal: (1) That said decision was erroneous and contrary to law; (2) that said court erred in deciding that the petition showed no contract between the petitioner and the town of Barrington; (3) that said court erred in its construction of the meaning and effect of the resolution passed by the financial town meeting of the town of Barrington set forth in said petition; (4) that said court erred in finding that the direction of the financial town meeting to the town council was not mandatory.

The town council in their report, after referring to the condition of the heating apparatus of the town building, to the calling in of experts and the examination by them, and referring in terms of approval to the bid of the petitioner for a complete reconstruction of said apparatus, proceeds to "recommend to the electors that they authorize the new council to make a thorough reconstruction of the heating system in the town building, that new boilers, extra radiation where needed, and such changes as were outlined in the specifications accompanying the bid of the Putnam Foundry & Machine Company- and we further recommend that the bid of the aforesaid company, dated August, 1906, of $2,250, be accepted and the

work awarded to them." The recommendation of the town council as to new boilers, extra radiation where needed, and such changes as were outlined, is evidently not complete. After making the recommendation for a thorough reconstruction of the heating apparatus in the town building, the report continues with the words, "that new boilers, extra radiation where needed, and such changes as were outlined in the specifications accompanying the bid of the Putnam Foundry & Machine Company," and then, without completing the sentence, says, "and we further recommend that the bid of the aforesaid company, dated August, 1906, of $2,250, be accepted and the work awarded to them." The financial town meeting, on November 6, 1906, acting on said report of the town council, passed a resolution appropriating “$2,250, or so much thereof as may be necessary" for the reconstruction and renewal of the heating and ventilating apparatus in said town building, "said sum to be expended under the supervision of the town council as recommended in their report of to-day," and also authorized the town treasurer to hire a sufficient sum to meet the above expenditure.

Counsel for the petitioner argues that the bid was accepted by the financial town meeting, and that there was therefore a contract made between the petitioner and the town, although the offer submitted contained a form for the acceptance thereof by the town in writing, and that there remains only the ministerial duty of causing the contract submitted by the petitioner to be executed by the town council so that the petitioner may have the written evidence of the contract to which it claims it is entitled. Counsel admits that the intent of the resolution of the financial town meeting would not be clear standing alone, but argues that, when taken in connection with the recommendation of the town council, the intent is clear, and that it constitutes an acceptance of the petitioner's offer. Counsel for the petitioner has cited several cases where mandamus has been held to lie to compel the award of a contract to the lowest bidder therefor. Boren v. Darke County Com'rs, 21 Ohio St. 311; Beaver v. Trustees for Institution for the Blind, 19 Ohio St. 97; People v. Contracting Board, 46 Barb. (N. Y.) 254; People v. Buffalo County, 4 Neb. 150. In all these cases, however, these were statutes requiring contracts for either public buildings or other public work to be awarded to the lowest bidder. These cases therefore are not in point; there being no such statutory provision in this case. We think, however, that the court in State v. Board of Education of Fond du Lac, 24 Wis. 683, stated the better rule as to the right of the lowest bidder, in the class of cases last referred to, as follows: "The statutory provision requiring the contract in such cases to be let to the lowest bidder is designed for the benefit and protection of the public, and not of the bidders." Counsel also cites Inger