Jones v. Waters

Gamble, Judge, delivered the opinion of the court. 1. There is no difficulty in construing the devise in the will of Joab Waters to his wife and children. He devises the property to his wife “for and during her natural life, and after her death to descend to her children by me, equally, share and share alike.” The statute in force when this will was made, and which has ever since been continued in force, provides : “ That, whenever any person shall, by his or her last will and testament, devise any lands, tenements, or hereditaments to any person for and during the term of such person’s natural life, and after his or her death, to his or her children, or heirs, or right heirs in fee, such devise shall be taken and construed to vest an estate for life only in such devisee and a remainder in fee simple in such children, heirs, or right heirs, any law, usage or custom to the contrary notwithstanding. R. C. 1825, 794, sec. 18. No question can arise here whether the mother’s interest is greater than a life estate. It is just that estate and nothing more. Nor is any plausible reason given for holding, that the remainder shall not vest in the children until the mother’s death. It is the capacity to take effect in possession, if the particular estate was at once determined, which makes a remainder a vested remainder. Here, the devi590 sees in remainder are ascertained by tlie will, and they are to bave the enjoyment o£ the estate as soon as the estate for life ends. The devise of the remainder is not, to such of the children as may be alive at the death of the mother, but to all the children of the marriage. There is no event or contingency interposed between the death of the mother and the enjoyment of the estate by the persons in remainder, but immediately on her death it descends to them. The law favors vested estates, and no remainder will be construed to be contingent which may, consistently with the intention, be deemed vested. 4 Kent’s Com. 203. The child of Joab Waters, who died before his mother, had a vested remainder, which was an estate in the land that could be sold. The judgment of the Circuit Court is, with the concurrence of the other judges, affirmed.