Phillips's Appeal

Chief Justice Sharswood delivered the opinion of the court, February 24th 1880. The question in this cause depends upon the construction of the deed of October 17th 1866, which was a settlement by Mrs. Elizabeth Ebbs on the marriage of her daughter Florence with the appellant. It declares the trust to be for the separate use of Florence during her life, then in trust for her children living at the time of her death, and the issue of such as should be deceased to be conveyed to them as they shall respectively attain twenty-one years of age. The provision which follows has given rise to this controversy : “ And in default of such children or issue attaining twenty-one years of age, then in trust for such person or persons as would have been entitled to the said property or securities had the party of the first part (the said Elizabeth Ebbs, the grantor) died possessed thereof after the death of the said Florence Ebbs without issue her surviving.” There is no uncertainty as is contended in this limitation over. It was not necessary to wait for the death of Mrs. Ebbs to ascertain who would be her next of kin, or who would have been entitled had she died possessed thereof after the death of Florence, without issue her surviving. It is not like a limitation of real estate to the heirs of a person living, where tlie rule nemo est hceres viventis might create a difficulty. The next of kin of a person is ascertainable at any period which may be named for the vesting of a fund or estate. The words “ attaining twenty-one years of age” apply to both classes — children living at the death of Florence and the issue of deceased children. When, therefore, the only child of Florence who survived her died under twenty-one, the limitation over took effect to the persons who were then the next of kin of Mrs. Ebbs. There was no violation of the rule against perpetuities, no possibility that the estate could have been tied up for a longer period than a life or [50] lives in being and twenty-one years after. When tbe deed was executed Florence of course was in full life, and the ultimate limitation could not reach beyond twenty-one years after her death. At that period the absolute estate must vest in the persons at that time the next of kin of Mrs. Ebbs, whether she was then living or dead. The intention is very plain that Mrs. Ebbs did not mean this fund to pass to any who were not of her blood. There was nothing in the provision of the deed which was contrary to law. The intention of a deed is as much the governing rule of construction as in a will, except that the former still requires formal words of limitation to make an estate of inheritance in conveyances of real estate. Decree affirmed and appeal dismissed at the costs of the appellant.