Opinion of the court.

by will that no estate vests thereby at the death of the devisor, but only on a future contingency. It differs from a remainder in three material points:

1. It needs no particular estate to support it.

2. A fee simple or other less estate may be limited by it -after a fee simple.

3. A remainder may be limited, of a chattel interest, after a particular estate for life in the same property.*

The law will not construe a limitation in a will into an executory devise when it can take effect as a remainder, nor a remainder to be contingent when it can be taken to be vested.

It is a rule of law that estates shall be held to vest at the earliest possible period, unless there be a clear manifestation of the intention of the testator to the contrary.†

Adverbs of time-as where, there, after, from, &c.—in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not the time of the vesting in interest.

Where there is a devise to a class of persons to take effect in enjoyment at a future period, the estate vests in the persons as they come in esse, subject to open and let in others as they are born afterward.§

* 2 Blackstone's Commentaries, chap. 12.

Johnson v. Valentine, 4 Sandford, 43; Wrightson v. Macaulay, 14 Meeson & Welsby, 214; Chew's Appeal, 37 Penn. 28; Moore v. Lyons, 25 Wend. 126; Phipps v. Williams, 5 Simons, 44; Gold v. Judson, 21 Conn. 622; Redfield on Wills, 379; Finlay v. King, 3 Pet. 374, 5 Barr, 28; Carver v. Jackson, 4 Pet. 92; Purefoy v. Rogers, 2 Saunders, 388; Doe v. Morgan, 3 Term, 765, 766; Nightingale v. Burrell, 15 Pick. 110.

Johnson v. Valentine, 4 Sandford, 43; Moore v. Lyons, 25 Wendell, 119; Boraston's Case, 3 Coke, 20; Minnig v. Batdorff, 5 Barr, 506; Rives v. Frizzle, 8 Iredell's Equity, 239.

Johnson v. Valentine, 4 Sandford, 45 ; Doe v. Provoost, 4 Johnson, 61; Chew's Appeal, 37 Penn. 28; Doe v. Ward, 9 Adolphus & Ellis, 582, 607, 4 Dow, 203; Doe v. Nowell, 1 Maule & Selwyn, 334; Bromfield v. Crowder, 1 New Reports, 326; Phipps v. Ackers, 9 Clark & Finelly, 583; Doe v. Prigg, 8 Barnewall & Cresswell, 235; Minnig v. Batdorff, 5 Barr, 505; Gold v. Judson, 21 Conn. 623.

Opinion of the court.

An estate once vested will not be devested unless the intent to devest clearly appears.*

The law does not favor the abeyance of estates, and never allows it to arise by construction or implication.†

"When a remainder is limited to a person in esse and ascertained, to take effect by express limitation, on the termination of the preceding particular estate, the remainder is unquestionably vested."

This rule is thus stated with more fulness by the Supreme Court of Massachusetts. "Where a remainder is limited to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event that must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainderman is in esse and ascertained, provided nothing but his own death before the determination of the particular estate, will prevent such remainder from vesting in possession; yet, if the estate is limited over to another in the event of the death of the remainder-man before the determination of the particular estate, his vested estate will be subject to be devested by that event, and the interest of the substituted remainderman which was before either an executory devise or a contingent remainder, will, if he is in esse and ascertained, be immediately converted into a vested remainder."§

In 4th Kent's Commentaries, 282, it is said: "This has now become the settled technical construction of the language and the established English rule of construction."|| It is added: "It is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent. The present capacity of taking effect in possession-if the possession were to become vacant-distinguishes a vested from a contingent remainder, and not the

* Chew's Appeal, 45 Penn. 232; Harrison v. Foreman, 5 Vesey, 208; Doe v. Perryn, 3 Term, 493; Smither v. Willock, 9 Vesey, 234.

Comyn's Dig., Abeyance, A. E.; Catlin v. Jackson, 8 Johnson, 549; Ekins v. Dormer, 3 Atkyns, 534.

Preston on Estates, 70.

Blanchard v. Blanchard, 1 Allen, 227.

|| Doe v. Prigg, 8 Barnewall & Cresswell, 231.

Opinion of the court.

certainty that the possession will ever become vacant while the remainder continues."*

It is further said in the same volume:† "A. devises to B. for life, remainder to his children, but if he dies without leaving children remainder over, both the remainders are contingent, but if B. afterward marries and has a child, the remainder becomes vested in that child, subject to open and let in unborn children, and the remainders over are gone forever. The remainder becomes a vested remainder in fee in the child as soon as the child is born, and does not wait for the parent's death, and if the child dies in the lifetime of the parent, the vested estate in remainder descends to his heirs."

We have quoted this language because of its appositeness to the case under consideration. The propositions stated are fully sustained by the authorities referred to. Other authorities, too numerous to be named, to the same effect, might be cited. We content ourselves with referring to a part of those to which our attention has been called in the briefs in this case.§

This doctrine received the sanction of the Supreme Court of Ohio in Jeefers v. Lampson,|| where it was adopted and applied. The leading authorities relied upon by the counsel for defendants in error in this case were cited by the court and control the result. We are bound by this decision as a local rule of property.

* Williamson v. Field, 2 Sandford's Chancery, 533.

† Page 284.

Doe v. Perryn, 3 Term, 484 (Buller's opinion); Right v. Creber, 5 Barnewall & Cresswell, 866; Story, J., in Sisson v. Seabury, 1 Sumner, 243; Hannan v. Osborn, 4 Paige, 336; Marsellis v. Thalhimer, 2 Id. 35.

Harrison v. Foreman, 5 Vesey, 208; Belk v. Slack, 1 Keen, 238; Bromfield v. Crowder, 1 New Reports, 325; Danforth v. Talbot, 7 B. Monroe, 624; Goodtitle v. Whitby, 1 Burrow, 234; Moore v. Lyons, 25 Wendell, 119; Randoll v. Doe, 5 Dow, 202; Edwards v. Symons, 6 Taunton, 214; Phipps v. Ackers, 9 Clark & Finelly, 583; Stanley v. Stanley, 16 Vesey, 506; Doe v. Nowell, 1 Maule & Selwyn, 334; Boraston's Case, 3 Coke, 52; Doe v. Ewart, 7 Adolphus & Ellis, 636; Minnig v. Batdorff, 5 Barr, Pennsylvania State, 503.

| 10 Ohio State Rep. 101.

Opinion of the court.

The same doctrine has been sanctioned by this court.* According to the theory of the plaintiff's counsel, if Mary Jane Barr had married and had died before her mother, leaving children, they would have been cut off from the estate. Surely the testator could not have intended such a result.

In three of the cases, substantially like this as to the point under consideration, brought to our attention by the counsel for the defendants in error, this consequence of such a construction was adverted to by the court.

In Carver v. Jackson,† the court say: "It is also the manifest intention of the settlement, that if there is any issue, or the issue of any issue, such issue shall take the estate, which can only be by construing the prior limitation in the manner in which it is construed by this court."

In Goodtitle v. Whitby, Lord Mansfield said: "Here, upon the reason of the thing, the infant is the object of the testator's bounty, and the testator does not mean to deprive him of it in any event. Now, suppose that the object of the testator's bounty marries and dies before his age of twentyone, leaving children, could the testator intend in such an event to disinherit them? Certainly he could not."

In Doe v. Perryn,§ Buller, Justice, said: "But if this were held not to vest till the death of the parents, this inconvenience would follow, that it would not go to grandchildren; for if a child were born who died in the lifetime of his parents, leaving issue, such grandchild could not take; which could not be supposed to be the intention of the devisor."

Mary Jane Barr was, at the death of the testator, within every particular of the category, which, according to the authorities referred to, creates a vested remainder.

1. The person to take was in esse.

* Finlay et al. v. King's Lessee, 3 Peters, 376; Carver v. Jackson, 4 Id. 1; Williamson et al. v. Berry, 8 Howard, 495; Croxall v. Shererd, 5 Wallace, 280; see also Washburn on Real Property, 229, and 1 Greenleaf's Cruise, tit. Remainder.

1 Peters, 1.

1 Burrow, 233.

? 3 Term, 495.

Opinion of the court.

2. She was ascertained and certain.

3. The estate was limited, to take effect in her absolutely, upon the death of her father.

4. That was an event which must unavoidably happen by the efflux of time.

5. Nothing but her death, before the death of her father, would defeat the remainder limited to her.

6. She had a fixed right of property on the death of the devisor. The period of enjoyment only was deferred and uncertain.

7. The time of enjoyment in possession depended upon the death of her mother. The right was in nowise dependent on that event.

8. Upon the death of her father, she surviving him, her estate, before defeasible, became indefeasible and absolute.

We are thus brought to the conclusion, upon technical as well as untechnical grounds, that Mary Jane Barr had, at the time of her death, an indefeasible estate of remainder in fee in the premises in controversy.

In the view we have taken of this case, the doctrine of shifting uses can have no application; we therefore forbear to advert to the rules of law relating to that subject.

IV. Mary Jane Barr having died unmarried and intestate, it remains to inquire to whom her estate passed.

The descent cast was governed by the statute of December 30th, 1815.

The first section only applies to the subject.

The first part of the fourth clause of that section is as follows:

4. If there be neither brother nor sister of the intestate of the blood of the ancestor from whom the estate came, or their legal representatives, and if the ancestor from whom the estate came be deceased, the estate shall pass to the brothers and sisters of the ancestor from whom the estate came, or their legal representatives." This gave the property "to the brothers and sisters" of the testator," or their legal representatives."

The language of this clause is plain and unambiguous.