Wells v. Ritter

The opinion of the Court was delivered by Kennedy, J. The question to be determined here is, whether under the will of Eli Yarnall, and the conveyance from Walker Yarnall, the brother of the testator mentioned in the will, and the children of the testator’s sister Sarah, also mentioned therein, to the plaintiff, he has become invested with a good title in fee to the estate mentioned in, and disposed of by the will. The case has been very well argued by the counsel on both sides; and in such a way as to relieve the Court in a great measure fr°m labour, that *otherwise must have been en-countered in seaching and looking into the cases hitherto decided on this abstruse branch of the law. First. It has been argued by the counsel for the plaintiff, that Alice the wife of the testator, took an estate tail under the will, according to the rule in Shelly’s case, (1 Co. 66); which is, that “if by any instrument, a freehold be limited to the ancestor for life, and the inheritance to his heirs, either mediately or immediately, the first taker takes the whole estate; for instance, if it be limited to the heirs of his body, he takes a fee tail, if to his heirs, a fee simple.” Prest. on Estates, 265. Second. Supposing that in this they-are mistaken, and that Alice took only an estate for life, it has been contended then, that the limitation to her issue must be regarded as a contingent remainder, and consequently, the subsequent limitation to the testator’s sister Sarah’s children, and the children of his brother Walker Yarnall, is to be taken as a contingent remainder also, and not an executory devise; and the preceding particular estate — 215 — of freehold which supported it, having expired without Walker Yarnall’s having a child, the remainder of his children being an undivided moiety of the estate, is gone, and has become vested by descent in Walker Yarnall, and the children of the testator’s sister Sarah, as the heirs at law of the testator. The words of the will, upon which the question arises here are, “ I give and devise to my well beloved wife Alice Yarnall, all my estate situate in the township of Edgmont, for and during her natural life, and to her issue, by me begotten, his or her heirs and assigns forever; but if no heir by me should live to the age of twenty-one years, or marry, my will then is, that my real estate shall be equally divided between my sister Sarah’s children and the children of my brother Walker Yarnall, provided he should have any ; my sister Sarah’s children taking one half, and the children of my brother Walker the other half part.” The will was made on the 27th of August, 1812, and the testator died on the following day. His wife was enciente at and for some time before the making of the will, and gave birth to the child shortly after his death. The child, however, died subsequently, on the 24th of March, 1831, about one year after the death of its mother, under the age of twenty-one years, and without having been married. From the testator’s dying the day after making his will, it is reasonable to conclude, that he made it under the prospect of almost immediate death; and as his wife had been pregnant for some time previously thereto, that he must have known it; and she having no other child by him, that he must have intended to provide for it. But as the child was not actually born then, he could not designate it either by its name or sex. Under these circumstances, it would therefore seem, as if he selected and used the word issue for this purpose; and that, after giving the estate to the mother for life, confident, no doubt, *that she AYOuld support and provide for the child out of it during that period, his great object was to make the child, if it should live until it attained the age of twenty-one years or got married, the absolute owner of the estate in fee. This conclusion would seem to be highly probable, if not irresistible, from the terms of the will and the situation of the testator’s family, at the time of making it. He knew that he had no issue by his wife then actually born, but that she was then with child by him; and believing, as it may reasonably be supposed, that death was waiting at the door, as it were, to take him off, he never could, in making his will, have thought that his wife was ever to have any other issue by him than the child of which she was then enciente. The most rational inference certainly is, that he introduced the word issue into his will in reference to what he then believed was the state of his family; intending — 216 — thereby to designate and provide for the child in ventre sa mere, by limiting the estate in fee to it, after the determination of the life estate given to his wife, subject, however, to be determined by the child’s dying before the age of twenty-one, or marriage. But it has been objected here, that the situation of the testator’s family at the time of making the will, or other circumstances not appearing on the face of the will itself, are to have no influence upon its construction; it is contended, that it must be interpreted ex viseeribus suis. The late Mr. Justice Duncan, in delivering the opinion of this Court in Swift v. Duffield, (5 Serg. & Rawle, 89,) says, “Where the intention of a testator is ambiguously expressed, the time of making the will; the state of the property; and situation of the family, are often resorted to in aid of its construction.” Lord Talbot, also, in Stapleton v. Colville, (Talb. Ca. 208,) seems to intimate, where the question was, whether the testator intended by his will to charge his debt exclusively on his real estate, that the amounts of the debts, and quantum of the personal estate might be inquired into, by saying, that it might have thrown great light on the matter in that case had it appeared. This, however, is expressly denied by Lord Thurlow, in Ancaster v. Mayer, 1 Bro. Ch. Ca. 466, 467,) by Lord Northington, in Stephenson v. Heathcote, (1 Eden’s Ca. 43); by Lord Alvanley, in Brummel v. Prothero, (3 Ves. 113); by Lord Eldon, in Bootle v. Blundle, (1 Meriv. 216, 217,) and by Lord Chancellor Manners, in Aldridge v. Wallscourt, (1 Ball & Beat. 315). See also Cole v. Rawlinson, (1 Salk. 234, 235,) and O’Brien v. Inchiquin, (Ridg. Ca. 249). Still, however, notwithstanding it seems to be settled by a series of decisions in England,, that the condition of the testator’s estate cannot be inquired into and taken into consideration further than it shall appear from the face of the will itself, in order to determine the construction that shall be put on it, yet the condition of his family may. And Lord Chancellor Manners, accordingly, in Crone v. Odell, (1 Ball. & Beat. 480, 481,) in answer to an argument urged by (with a view to exclude the consideration of the state of the tester’s family,) that the Court could not travel out of the will for that purpose, said, “The contrary has been held to be the law from the time of Wilde’s Case, (6 Co. 16,) to the present time. In Goodinge v. Goodinge, (1 Ves. 231,) the same argument was urged and overruled by Lord Hardwicke; and his opinion upon that point has been confirmed by the uniform decisions of courts of equity ever since.” See also Radcliffe v. Buckley, (10 Ves. 201.) But here it is clear from the will itself, that the word issue is used in the singular number, and cannot be taken as nomen eolleetivum, for it is the antecedent to the relative words — 217 — “his or her,” which latter, it must be admitted, are in the singular number, and in this respect must agree with their antecedent. Neither the word “his” nor “her” can be referred to the wife here, so as to create in her an estate tail, as was done in Lisle v. Pullen, (2 Stran. 731,) where, though the devise was “to Nicholas for and during the term of his natural life, and after his decease unto the heirs male of the body of the said Nicholas lawfully to be begotten, and his heirs forever yet the Court, by referring the word “his” to Nicholas, held that he took an estate tail. Here, however, it is perfectly manifest, that the words “his” and “her” are referable to the same antecedent; and the word “his” being of the male gender, cannot, in the nature of things, more than by the common rules of grammatical construction, be forced to have reference to the wife; it can only have reference to the word “issue;” and as it was unknown then whether that issue was male or female, the relative of either sex is used, so as to be applicable to the child, whichsoever of the two sexes it might be of. This brings the case then within the principle of Archer’s Case; making the term “issue” here a word of purchase, as the word “heir,” in the singular number, was held to be there. It cannot be said that the word issue, technically speaking, is less a word of purchase, wdien used in the singular number, than the word heir. The word issue, perhaps, has no precise technical meaning affixed to it, and must always depend, I apprehend, upon the context for’its true signification, whether it shall be taken as a word of purchase or of limitation. Indeed, Chief Baron Yelverton, in Mandeville v. Carrick, (3 Ridg. P. C. 365,) considers it, technically, a word of purchase. Lord Kenyon also says, in Doe v. Collis, (4 Term Rep. 299,) that it is generally considered a word of purchase, and indeed universally so in deeds, though in a will it may be taken as a word of purchase or of limitation, as will best answer the intention of the testator. Mr. Preston, in his Treatise on Estates, 1 vol. 379, says, it is not ex vi termini, within the rule in Shelly’s Case; and that it depends on the context, whether it will give an estate tail to the ancestor. Justice Clive, in Dodson v. Grew, (2 Wils. 324,) observes, “The word issue is one of the most vexed words in books; sometimes *it is nomen singulare, sometimes plural, sometimes a word of limitation, sometimes of purchase; but it must always be construed according to the intent of the will or deed wherein it is used;” and Justice Gould, in the same ease, says, “The word issue is used in the statute de bonis promiscuously with the word heirs of the body. The term issue comprehends the whole generation, as well as the word heirs, and in my judgment, the word issue is more properly in its natural signification a word of limitation — 218 — than of purchase. Justice Rainsford had said previously, in Warman v. Seaman, (Finch’s Rep. 282,) “the word issue ex vi termini is nomen collectivu/m, and takes in all issues to the utmost extent of the family, as the word heirs of the body would do;” and for this he vouched Wilde’s Case, (6 Co. 17.) Mr. Justice Grose reports the declaration of Justice Rainsford, in Doe v. Applin, (4 Term Rep. 88,) after having said, “ There is no case, in which issue has been determined to be a word of purchase, unless coupled with other words, expressing such an intent.” He, however, must be understood as speaking in reference to cases growing out of wills. Rut even thus restricted, it may be questionable, whether he be right. And justice Clive went too far, perhaps, if he meant to say, that the word issue was to be considered either a word of limitation or purchase in a deed as well as a will, accordingly as might seem to accord best with the intention thereof: for I rather take it to be as Lord Kenyon has said, that in a deed it has generally at least, if not universally, been considered, and received as a wrnrd of purchase. In a popular sense, however, I think it can scarcely be doubted, but it is used to mean children ; and the popular meaning of Words is certainly not to be overlooked in the construction of wills, especially when made or drawn by unskilful persons. Rut still, notwithstanding there may have been some diversity of opinion among judges, whether the word issue has any precise technical meaning affixed to it or not, and if it has, whether it be that of a word of limitation or of purchase, yet they all seem to agree, that in a will it shall be taken to signify the one dr the other, as shall best comport with the intention of the testator. See Kirkpatrick v. Kirkpatrick, (13 Ves. 483-4-5). It is agreed, however, that if the word issue here be in the singular number, it must be considered a word oí purchase. This was also agreed, in regard to the word heir, as Lord Mansfield says, in Doe v. Laming, (2 Burr. 1110,) where words of limitation were ingrafted upon it in the singular number: and therefore agreed, that such heir would take by purchase. This he said was . settled in Archer’s Case, and was admitted in the case of Tubler on the demise of Trollope v. Trollope, (P. 2 Geo. 28, B. R.) though that case was distinguished from Archer’s Case, by having no words of limitation superadded to the words “first heir male.” In Luddington v. Kime, (1 Salk. 224; s. c. 1 Ld. Raym. 205,) the ^ord issue was held to be a word of purchase. There the land was devised to A. for life, without impeachment of waste; and in case he have any issue male, then to such issue male and his heirs forever; and if he die without issue, then toR. and his heirs forever. The Court held, that issue was to be taken as nomen singulare, because the inheritance (that is, the — 219 — superadded words of limitation) was annexed and limited to the word issue ; so that the inheritance was in the issue, and not in A. the father. And to this it may be added, that the word issue was shown clearly there, as in the case before us, to have been used as nomen singulare, by inserting the relative thereto “his” in the singular number — “ to such issue male and his heirs forever ;” and not “ to such issue male and their heirs foreveras most probably would and ought to have been the case, had not the word issue been intended to designate a single individual. Accordingly Lord Northington, in speaking of this case in King v. Burchell, (1 Eden’s Ca.431,) and in undertaking to distinguish it from the case under his consideration, says, “ The Court, in order to make the word issue a word of purchase, held that it was to be taken there as nomen singulare, because the inheritance was annexed to the word issue; that is, the words of inheritance were connected with and referred to the word issue, by means of the word his in the singular number. But in the case before Lord Northington, the word issue was shown to be in the plural, by means of its relative “their” being placed in the plural: thus, “to his issue and their heirs;” and therefore he held the word issue to be a word of limitation. The -intention, however, of the testator, in the case before us, to use the word issue in the singular number, and as a word of purchase, is not only indicated by the relatives “his” and “her,” but likewise by his substituting the word heir afterwards in the singular number for the word issue ; when he says, “ but if no heir by me should live to the age of twenty-one years, or marry,” &c. The term heir alone here would, perhaps, be sufficient to bring this case within the principle of Archer’s Base; but in connection with the word issue, previously used, in the singular number, it becomes a much stronger case than Archer’s, in favour of the child, then in ventre sa mere, taking as a purchaser. If, however, by confining ourselves to the words of the will, without travelling out of it, any doubt existed in regard to this being the intent of the testator, the state of his family at the time of making it, which is proper, as we have seen, to be taken into the consideration, would be more than enough to remove it. Taking the word issue, then, as a designation of the child, with which the testator’s wife was enciente, at the time of making the will, we are next to inquire what interest it took, under the will, upon the death of the testator; and whether it vested The words of inheritance to the word issue *made the interest, intended for such issue, a estate, subject, however, to be determined by such issue or child dying before twenty-one — 220 — ox- marriage. And if it be that this child, which was aftex’wax’ds box’n, though subsequently to the death of the testatox*, is to be regax’ded as in rerum natura at the time of making the will, it would seem natux-ally to follow, that the estate ought to be considered vested, and not contingent. It must be admitted, that according to some, if not all, of the most ancient authox’ities in the common law, it would appear that a devise to fitz in ventre sa mere, was void, because it was not considered tlxeix as being in esse at the time of making the devise. See Scattergood v. Edges, (12 Mod. 282-3, 286-7,) and the books there refex-red to. But the judicial opinion on this subject most unquestionably underwent a change in England before the time of our revolution; so that, at that time, and for a considerable time before, there can be no doubt, it would have been considered good, at least, as a contingent remainder or executory devise, accordingly as it had a particular previous freehold estate, or not, to support it, if not positively good as a vested interest. Lord North, in Taylor v. Biddal, (2 Mod. 292; s. c. 1 Freem. 244,) says, “ A devise to an infant in ventre sa mere, is good, axxd it shall descend to the heir in the mean "time; for the testator coxxld not intend he should take presently; he must first 'be in rerum natura; so that it works in the nature of an executory devise.” So in Gynes v. Kemsley, (1 Freem. 293,) he agaixx repeats, “ The law is clear now, that a devise to an infant in ventre sa mere is good enough, though he be born after the death of the testator, and he will take by way of executory devise whexx he is born.” Again, some eighteeix years aftex’wards, Pasch. 6 William & Maxy, the Coux-t of King’s Bench, in Reeve v. Long, (1 Salk. 227; s. c. 309; 3 Lev. 408; 4 Mod. 282 ; Skin. 430; Comb. 252; 12 Mod. 52; Holt, 228, 286,) where the testator seised of lands in fee died after devising the same to his nephew H. L. for life, remainder to his first soxx in tail male, and so on to the second, third, &c.; and for default of such issue to his nephew, R. L., &e., H. L., after the death of the devisor, married aixd died without issue, other than leaving his wife enciento with a son, it was held, that this posthumous son was not entitled to the remainder ; thereby affirming the judgment of the Commoxx Pleas, because the remainder being contingent, as the judges of these Courts conceived, so long as the son was not actually born, it was lost by the previous determination of the father’s life estate which supported it. This judgment, however, was reversed upon wx'it of ex'ror in the House of Lords, contrary to the opinion of all the judges, who were much dissatisfied therewith, as it was said. Shortly after-wards, the statute of 10 & 11 W. 3, c. 16, was passed, declax’ing that posthumous children shall take estates limited in remainder by marriage or other settlement to which they would be entitled, if born, in the same manner as if born in the lifetime of ♦their fathers, although there be no limitation to trustees. It was questioned by some, whether this statute extended to devises, as the words of it are “ whore an estate is by any marriage or other settlement limited,” &c. See a quaere, by Mr. Salkeld, at the close of his report of Reeve v. Long, (1 Salk. 228). Mr. Butler, in a note to Co. Litt. 298, says also, “ there is a tradition, that as the case of Reeve v. Long arose upon a will, the lords considered the law to be settled by their determination in that case, and were unwilling to make any express mention of limitations or devises made in wills, lest it should appear to call in question the authority or propriety of their determination;” though he seems to think that the words of the act may be considered without much violence, to comprise settlements of estates made by will, as well as settlements of estates made by deed. It is also said in Buller’s N. P. 105, that there is no ground for the doubt suggested by Salkeld. And in Roe v. Quartley, (1 Term. Rep. 634,) the Court seem to take for granted, that it is applicable to wills as well as deeds. But certainly the decision of the House of Lords was sufficient without the aid of the act, to settle the law and the rule in favour of posthumous children taking under a will in the same manner as if actually born; so that, since the determination of Reeve v. Long by the House of Lords, the law, in England, ought to be considered as settled, that an infant in ventre sa mere is capable of taking an estate limited to it in remainder. But it is somewhat unaccountable, that not only, after the law had been thus established, in favour of the capacity of an infant, in ventre sa mere, to take a remainder limited by will, but even after the passage of the statute of 10 & 11 W. 3, it should have been thought by any to be contingent, itntil the actual birth of the child. Yet this would seem to have been the case, from what is said by the Court in Gulliver v. Wicket, (1 Wils. Rep. 106,) where the testator believing that his wife was with child, when in fact she was not, devised lands, of which he was seized in fee, to her for life, and after her death to the child, she was then enciente with, in fee, the Court said, they were of opinion, that the remainder in fee to the supposed child was a good contingent remainder. It is clear, that as the testator was altogether mistaken about his wife being in a state of pregnancy, the remainder was absolutely void; but why the Court, upon the supposition that the fact had been as the testator supposed, seemed to think that the remainder would have been good as a contingent remainder, I cannot conceive; for the child would have been as completely in esse, and as fully capable of taking the estate limited — 221 — to it, according to the final determination of Reeve v. Long, and the application that has been made of 10 & 11 W. 3, c. 16, as if it had been actually born and visible to the world at the time of making the will: if so, the remainder limited to it, had been in ventre sa mere, would have been a vested remainder, liable, however, to *be divested perhaps in the event of the child’s not born alive afterwards. And Mr. Bayley pronounces it a vested remainder in Herbert v. (2 Barn. & Cress, 925; s. c. 9 Eng. Com. Law. Reps. Justice Kelley, 278-9). His words are, “ As a child in ventre sa mere is for many purposes considered in esse, the first remainder, a fee determinable, was vested in the child, and the remainder over could only take effect by way of executory devise.” . It seems to me, then, that not only authority, but reason, and the analogy of the law, all unite in requiring that such a limitation should be treated as a vested remainder, ever after the conception of the child, if subsequently born alive. A child in ventre sa mere is deemed by law as in life or being for a variety of purposes at least. The mother may be guilty of murder by taking poison with an intent to destroy it, if it should be born alive thereafter and die from the effect of the poison ; yet murder can only be committed by killing a reasonable creature in being ; hence the child is deemed such, though only in ventre sa mere at the time of taking the poison. 3 Inst. 50 ; IP. Wins. 245, 487. An infant in ventre sa mere may be vouched in a recovery, though it is for the purpose of making him answer over in value, if Hod should give him birth. 1 Inst. 390, a. Thellusson v. Woodward, (4 Ves. 322); so that, from this, it would appear, that such infant is not merely considered as in being in those eases alone, where it is for his benefit to be so, according to the rule of the civil law, Wallis v. Hodson, (2 Atk. 119,) but for the purpose also of being charged in some instances. He may be an executor, Swinburne, 359, part 5. He may take under the statute of distributions. Wallis v. Hodson, (2 Atk. 115); Burnatt v. Mann, (1 Ves. 156); Edwards v. Freeman, (2 P. Wms. 446). He may also take by devise. Swinburne, 250, 251; Moore, 177; Com. Dig. tit. Devise (1). He may be entitled under marriage articles to a portion as a child living at the death of the father or mother. Miller v. Turner, (1 Ves. 85). He may have an injunction to stay waste. Lutteral’s Case, cited in Hale v. Hale, (Prec. in Chan. 50); 2 Vern. 710; and he may have a guardian; 12 Car. 2, c. 24, sec. 8 & 9. The most of these positions are repeated by Mr. Justice Buller, in Thellusson v. Woodward, (4 Ves. 322,) who also repeats there what was laid down by Lord Hardwicke, in Wallis v. Hodson, (2 Atk. 117). “ The principal reason, says Lord Hardwicke, I go upon in this question is, that the — 222 — plaintiff was in ventre sa mere at the time of her brother’s death, and consequently a person in rerum natura, so that both by the rules of the common and civil law, she was, to all intents and ■purposes, a child, as much as if born in the father’s lifetime.” This proposition of Lord Hardwicke is fully sustained by the previous cases, decided on this subject, of Burdett v. Hopegood, (1. P. Wms. 486, 487); Beale v. Beale, (Id. 246,) and Hale v. Hale, (Prec. in Chan. 50). And subsequently in conformity to the same principle, Lord Hardwicke decided in * Miller v. Turner, (1 Ves. 88,) that a posthumous child was within the provision contained in marriage articles, for such children of the marriage, as should be living at the death of the father or mother. Lord Thurlow also, in Clarke v. Blake, (2 Bro. Ch. Ca. 320,) held that a child in ventre sa mere at the death of A. should take as a child living at the death of A. The same principle was confirmed afterwards by the same, in 2 Ves. Jr. 673. The same question growing out of the same will, came before the Common Pleas in Clarke v. Clarke, (2 Hen. Bl. 399.) According to the case, as stated there, lands were- devised to B. for life, and after his decease, to all and every such child or children of B. as should be living at the time of his decease; and it was held by all the judges that a posthumous child of B. should share equally with those born in his lifetime: and that in law, at least, if not in fact, an infant in ventre sa mere was considered as born for all purposes which were for his benefit. And in confirmation of this last position, afterwards, in Whitelock v. Heddon, (1 Bos. & Pul. 243,) the devise- being to any son of John Whitelock, begotten and born in lawful wedlock, at the time of John Heddon’s attaining the age of twenty-one years, it was held unanimously, that a son born about four months after the time, when John Heddon attained twenty-one was entitled to take under the devise. So, previously to this, in Lancashire v. Lancashire, (5 Term Rep. 49,) the King’s Bench seem to take it as a matter conceded and settled, that an infant in ventre sa mere is born for every purpose where it is for his advantage to be so; and Mr. Justice Grose there, page 64, says, “ The instant the child is born, he is considered by retrospect as born during the parent’s life. For this opinion I refer to the civil law, as was done in Christopher v. Christopher, and the other cases which are founded on that law. Yinniers says, “si modo postea nascatur, tunc enim fictione juris nativitas retrotrahitur.” In Trower v. Butts, the last English case to which I shall refer oh this point, (1 Simons & Stewart, 181; s. c. 1 Cond. Eng. Ch. Rep. 90,) the bequest was in trust for all the children of — 223 — the testatrix’s nephew R. lorn in the lifetime of the testatrix, and it was held by the Yice-Chancellor, that a child of which the wife of R. was enciente at the time of the testatrix’s death, though not born for four months afterwards, was included in the bequest. The stat. of 10 & 11 W. 3, c. 16, being in force here, and the. English decisions made anterior to our revolution being regarded as having a binding authority, the case of Swift v. Duffield, (5 Serg. & Rawle, 40,) may be considered as having been determined in conformity to them. There it was held that a grand-child, in ventre sa mere, at the time of making the will, and born after the death of the testator, was entitled to a grandchild’s share, under a devise and bequest to the testator’s grandchildren, the children of his son A., deceased, of all the remainder and residue of his estate, both real and personal, whatsoever ^ wheresoever to be found. Mr. Justice *Duncan, in delivering the opinion of the Court, after repeating and recognising the principle as laid down by Lord Hardwicko in Wallis v. Hodson, says, “A child in the womb of the mother is under the protection of the law, and possessed of all the privileges of a living being. He is considered as born from the time the will takes effect.” It is perfectly obvious, that the Court considered and treated the share of the posthumous grand-child as an interest that vested immediately upon the dying of the testator. Indeed, it is impossible that such child could have- taken at all under the will, unless as a vested interest; because, otherwise, the whole of the residuum of the testator’s estate, must have vested in the other children of his deceased son A., and been taken by them exclusively. Seeing, then, that a child in ventre sa mere, at the time of the testator’s death, being the time also when the will takes effect, and born afterwards, is not only considered in esse but as born, for the purpose of taking any benefit under the will that it would be entitled to, in case it had been actually born, then, it would necessarily seem to follow, that whatever is thereby given to such child cannot be considered as contingent by reason of any uncertainty in respect to the child’s existence. As to the object of the testator’s bounty, in such ease it is considered as in being and certain ; and if there be no uncertainty or contingency attending the gift in any other respect, it will be considered as vesting immediately upon the death of the testator. According to this doctrine, then, the devise here to the issue of the wife, that is, the. child with which she was then pregnant, as we construe it, became vested in interest immediately in the — 224 — child, upon the death of the devisor, though it could not vest in possession during the life of the wife, who had the right thereto for that period. Consequently, the devise to the child, there being general words of inheritance superadded to the same, constituted a vested remainder in fee, but liable to be determined by the child’s not living till twenty:one or marriage, according to the subsequent provision and limitation of the estate, whereby it is given to the children of the devisor’s sister Sarah, and the children of his brother, Walker Yarnall, provided he should have any. But this last limitation of the estate being after a previous fee therein given to the child of his wife, which vested in it upon the death of the devisor, could only take effect as an executory devise. It is pretty much like the ease in 1 Equity Ca. Abr. 188, pl. 8, where one devised land to his wife, till his son should come to the age of twenty-one years, and then that his son should have the land, to him and' his heirs, and if he died without issue before said age, then to his daughter and her heirs; and it was held to be an executory devise to the daughter, if the contingency happened. The child, then, having died here before it attained twenty-one years of age, or contracted matrimony, the *children of the devisor’s sister Sarah, thereupon became entitled to an undivided moiety of the estate* which they took as an executory devise: and should Walker Yarnall, the brother, having no child or children as yet, hereafter have any, a thing still possible in contemplation of law, as long as he is in being, however old or infirm he may be, such child or children will become entitled to the other moiety. The title of the plaintiff is therefore liable to be defeated, as to- a moiety of the estate, in case Walker Yarnall should have a child hereafter. Consequently, as it is not absolutely indefeasible, the defendant is not bound to accept it under the agreement for the purchase of the estate. Supposing however, the limitation to the child in ventre sa mere, were a contingent and not a vested remainder at the death of the testator, still it cannot be pretended, that it did not become vested immediately upon the birth of the child; for the devise to the child is not given upon any contingency or condition precedent; such as “if it shall attain the age of twenty-one years or get married.” Indeed it might perhaps have admitted of a question whether the words of the will do not import a devise of the estate immediately to the wife and child jointly, for the life of the wife, with a determinable fee in remainder to the child; the words are, “ I devise to my wife all my estate during her life, and to her issue (child) by me begotten, his or her heirs and assigns forever,” &c. The wife and child seem to be joined in this devise simply by the copulative “ and.” But — 225 — waiving this question, and admitting there were such apparent 'words of condition annexed .to the devise to the child, the limitation over would have been considered so far explanatory of them, as to have prevented their receiving such a construction. This principle seems to be fully established by the cases of Edwards v. Hammond, (8 Lev. 132; s. c. 2 Show. 398 ; 4 Bos. & Pull. 324, in note); Broomfield v. Crowder, (4 Bos. & Pull. 313); Hunt v. Moore, (14 East, 601,) and Roake v. Nowell, (1 Maule k Selw. 327 ; s. c. 5 Dow. 202). These authorities go to show that the condition in such cases is to be regarded as of a subsequent character. In the last case cited, which was affirmed in the House of Lords, the devisor devised to his nephew J. R. for life, who was not even married, and had no children till after the death of the devisor, remainder to and among his children lawfully begotten, equally, at the age of twenty-one, and their heirs, as tenants in common ; but if only one child should live to attain such age, to him or her, and his or her heirs, at his or her age of twenty-one ; and in case his said nephew should die without lawful issue, or such lawful issue should die before twenty-one then over. J. R. marrying afterwards, and having children, levied a fine during their minority, which raised the question whether their shares were contingent or vested, or in other words, destructible by the act of J. R. or not. The Court of Ring’s Bench held that the remainders were ^vested in the children on their births, and said that the case was concluded by Broomfield v. Crowder, which’was fully considered. There the devise was in remainder, of all the testator’s estate to J. D. Broomfield, if the said J. D. B. should live to the age of twenty-one years; but in case the said J. D. B. died under twenty-one, and C. Broomfield should survive him, then over; and it was resolved that J. D. Broomfield took a vested estate, determinable upon the contingency of his dying under twenty-one. After that devise, came the case of Doe v. Moore, which was an immediate devise of the testator’s real estate in fee to J. Moore, when he attained the age of twenty-one, but in case he died before twenty-one, then to his brother, &c.; and there it was held that J. Moore took a vested estate. So that, whether the devise be in remainder or an immediate devise, it appears there is no substantial difference. The remainder in fee determinable having vested in the child here immediately on its birth, if not before, the limitation over to the children of the devisor’s sister Sarah, and of his brother Walker, could only take effect, if at all, as an executory devise, because, according to the rules of law, no estate can be limited to take effect after a fee, except by way of executory devise. But whether the fee upon which the limitation over is en226 grafted, be immediate, or one in remainder, either contingent or vested, can make no difference, so that the contingency upon which it is limited to take effect, must necessarily happen, if ever, within one or more life or lives in being and twenty-one years after, including a sufficient number of months for the birth of a child in ventre sa mere. See Fearne on Cont. Rem. and Ex. Dev. 429, and note also, (8th ed). Put it has been objected, that as no child was in being at the death of the devisor, and if none had been born afterwards alive, the limitation over, to the children of Sarah and Walker, respectively, would, in that dase, have been good as a contingent remainder ; and if so, it shall" not be construed.an executory devise according to a change produced in the state of objects subsequently to the death of the devisor; because it is a rule, said to be without an exception, that if a devise according to the state of the objects at the death of the testator, be capable of taking effect as a remainder, it shall not be construed to be an executory devise; for this Purefoy v. Rogers, (2 Lev. 39 ; s. c. 2 Saund. 380); Reeve v. Long, (Carth. 310); Goodright v. Cornish, (4 Mod. 258); and 2nd Jarman’s Powell on Dev. 237, are cited. Admitting the applicability of the rule, still I apprehend, it is saying too much, that it is without an exception. And Mr. Jarman himself, in his 2 Powell on Dev. 244, 245, has referred to Fonnereau v. Fonnereau, (Doug. 487, 508, 509,) where the testator devised to the heirs male of the body of T., testator’s eldest son, (to whom an estate for life had been limited by-deed,) and on default of such issue, to testator’s second, third, fourth, and fifth sons, successively in tail male: and it was held, that if T. died ^leaving an heir male of his body, the limitation to the .testator’s next son took effect as a remainder expectant on estate male; he died leaving no male issue, that it took effect immediately as an executory devise. And Lord Mansfield encounters the rule thus: “An obvious objection to the alternative in this ease is, that if the limitation over is a remainder, it cannot be turned into an executory devise. That is true, if -it ever vest as a remainder. Put here it might or might not, upon a contingency; and it never did. 2d. So in Hopkins v. Hopkins, Lord Talbot decided, in support of the intent, that a limitation which in one event would have operated as a remainder, but which event did not happen, should operate as an executory devise. This he did upon principle, without precedents ; and a great estate is now held under his determination. 3d. Brownsword v. Edwards, is another strong instance, where it was held that a devise may operate either way, according to the events.” Here, then, according to the reasoning of Lord Mansfield, and the authorities cited by him, in order to support — 227 — the intent of the testator, the remainder in fee to the issue, or child of the wife, having vested, and having again been determined by the child’s dying before twenty-one or marriage, the devise over to the children of Sarah and Walker, if he should hereafter have any, must necessarily be construed and be permitted to operate as an executory devise. And in Herbert v. Selby, before referred to, the devise was to the testator’s son Gr. for life, and from and after his decease, unto all and every the child and children of Gr. lawfully to be begotten, and their heirs forever, to hold as tenants in common, and not as joint tenants; but if his son G. should die without issue, or leaving issue’, and such child or children should die before attaining the age of twenty-one years, or without lawful issue, then over to his son T., his daughter A. S., and his son-in-law W. D., and to their heirs for ever, as tenants in common and not as joint-tenants, Mr. Justice Bayloy, in delivering his opinion in this case, presents it precisely under the supposed aspect which the case before us has actually assumed, from the events that have happened; and expresses his opinion without the least doubt in favour of its operating as an executory devise. “But it may happen,” says he, “that an estate may be devised over in either of two events; and that in the one event, the devise may operate as a contingent remainder, in the other, as an executory devise. Thus if G. had left a child, a determinable fee would have vested in that child, and then the devise over, could only have operated as an executory devise.” Judgment is rendered for the defendant. Judgment for the defendant. Cited by Counsel, 7 Watts & Sergeant, 97; 2 Barr, 336; 11 Harris, 238; 4 Casey, 99; 6 Id. 167,. 174; 7 P. B. Smith, 386.