Johnson v. Valentine, 4 Sandf. 45. This applies to the case before us. Mary Jane Barr was living, and evidently the object of the testator's bounty. She was not pointed out by name, but under the term "child" of John M. Barr, and would take with other children of John M. Barr, as they were born. See also to the same effect:

Doe v. Provoost, 4 Johns. 60; Chew's Appeal, 37 Pa. 28; Doe v. Ward, 9 A. & El. 607; Randoll v. Doe, 5 Dow. 203; Doe v. Nowell, 1 M. & S. 334; Bromfield v. Crowder, 1 B. & P. (N. R.) 326; Phipps v. Ackers, 9 Cl. & F. 583; Doe v. Prigg, 8 Barn. & C. 235; Minnig v. Batdorff, 5 Pa. 505; Gold v. Judson, 21 Conn. 623.

It is also a well-established rule, that estates that are contingent shall be held to vest as soon as they possibly can, upon any fair construction of the will.

In the language of Parke, Baron, in Wrightson v. McCauley, 14 Mees. & W. 230: "We should construe estates to vest at the earliest possible period;" or the language of the court in Johnson v. Valentine: "If violence is not done to the meaning of the testator, the estate should vest at once.

Johnson v. Valentine, 4 Sandf. 46; Carver v. Jackson, 4 Pet. 92.

Adverbs of time, such as on, upon, at, when, from, and after, and the like, found in wills denote simply the postponement of the enjoy ment, and not the postponement of the ownership or vesting of the estate.

Johnson v. Valentine, 4 Sandf. 43; Moore v. Lyons, 25 Wend. 119; Boraston's Case, 3 Co. 51; Minnig v. Batdorff, 5 Pa. 506; Rives v. Frizzle, 8 Ired. Eq. 239.

It is also a well-established rule, growing out of the same general reason, that an estate once vested is not to be devested, but descends to the heirs at law, unless the intent to devest the same clearly appears.

Chew's Appeal, 45 Pa. 232; Harrison v. Foreman, 5 Ves. 208; Doe v. Perryn, 3 T. R. 493: Smither v. Willock, 9 Ves. 234; Sturgess v. Pearson, 4 Mad. Ch. 411; Bromhead v. Hunt, 2 Jac. & W. 463; Skey v. Barnes, 3 Mer. 240. There are many cases in which the facts are very much like the facts in the case under consideration. Among them see the following:

Jeffers v. Lampson, 10 Ohio St. 104; Harrison v. Foreman, 5 Ves. 208; Belk v. Slack, 1 Keen, 238; Bromfield v. Crowder, 1 Bos. & P. (N. R.) 326; Danforth v. Talbot, 7 B. Mon. 624; Goodtitle v. Whitby, 1 Burr. 228; Moore v. Lyons, 25 Wend. 119; Right v. Creber, 5 Barn. & C. 872; Randoll v. Doe, 5 Dow. 204; Edwards v. Symons, 6 Taunt. 214; Phipps v. Ackers, 9 Cl. & F. 583; Stanley v. Stanley,

16 Ves. 506.

The remainder to the sons-in-law was contingent upon the death of John M. Barr without issue, and had Mary Jane Barr died before her father and after the testator's death, then the remainder, vested in her, would have devested in favor of the sons-in-law.

Blanchard v. Blanchard, 1 Allen, 227; Minnig v. Batdorff, 5 Pa. 506; Chew's Appeal, 37 Pa. 29; Moore v. Lyons, 25 Wend. 119; Williamson v. Field, 2 Sandf. Ch. 551; Jeffers v. Lampson, 10 Ohio St. 104; Johnson v. ValenLine, Sandf. 45; Finlay v. King, 3 Pet. 376;

Stanley v. Stanley, 16 Ves. 506; Phipps v. Ackers, 9 Cl. & F. 583.

The estate given to the trustees, though giv en in terms to them and their heirs, is neverthe less a dry, naked trust, imposing no active du ties of any kind upon them, and it is clearly limited to the life of the survivor of John M. Barr and wife and is, therefore, but an estate for the life of another and not a fee; and could not, therefore, prevent the vesting of the remainder in Mary Jane Barr at the death of William Barr, Sr.

The authorities are full to the point that trustees named in a will take only such estate in the property as may be necessary for them to fulfill the purposes of their trust.

Lewin, Trusts, 234; 2 Jarm. Wills, 213; Webster v. Cooper, 14 How. 499; Kenrick v. Beauclerk, 3 Bos. & P. 179; Doe v. Hicks, 7 Tr. 437; Blaker v. Anscombe, 1 Bos. & P. (N. R.) 27; Curtis v. Price, 12 Ves. 98; Morrant v. Gough, 7 Barn. & C. 211; Right v. Smith, 12 East, 461; Broughton v. Langley, 2 Ld. Raym. 873; Robinson v. Grey, 9 East, 1; Farmer v. Francis, 9 J. B. Moore, 319.

It is also well established, that where an estate is given by will to trustees and their heirs, such estate will be but a life estate, if it appear that it was for the use of parties for life, and there be no purpose of the trust requiring the vesting of a fee in the trustees.

Doe v. Hicks, 7 T. R. 437; Blaker v. Anscombe, 1 Bos. & P. (N. R.) 27; Curtis v. Price, 12 Ves. 100; Jarm. Wills, 213, 214; Robinson v. Grey, 9 East, 1; Farmer v. Francis, 9 J. B. Moore, 319.

It is also laid down as a rule, that when the

trust requires no active duties of the trustees, but is in terms like those in the will in question, "to permit and suffer John M. Barr to hold, use, occupy, possess, and enjoy the said farm, and to receive and take the rents and profits thereof," it is but a dry, naked trust, and vests no legal title in the trustee whatsoever. 2 Jarm. Wills, 202; Doe, ex dem. Leicester, 2 Taunt. 113; Right v. Smith, 12 East, 461; Broughton v. Langley, 2 Ld. Raym. 873. The fee vested in Mary Jane Barr has not become devested.

There is but one contingency stated in the will by which it could become devested, and that is in the event of John M. Barr dying without issue. As this contingency never happened, the estate remained vested and descended to her heirs under the statute.

Jeffers v. Lampson, 10 Ohio St. 104; Harrison v. Foreman, 5 Ves. 210; Smither v. Willock, 9 Ves. 234; Bromhead v. Hunt, 2 Jack. & W. 463; Skey v. Barnes, 3 Mer. 240; Malim v. Keighley, 2 Ves. Jr. 335.

On the death of Mary Jane Barr, the farm in question descended to the brothers and sisters of William Barr.

The question of the persons to whom property shall descend, is purely a question of statutory law in Ohio.

Drake v. Rogers, 13 Ohio St. 30; Penn v. Cox, 16 Ohio, 32; Curren v. Taylor, 19 Ohio, 39.

The case is the precise one provided for in the 4th subdivision of the 1st section of the statute of December 30, 1815.

2. That at the death of the said Mary Jane Barr, her said estate in said farm descended to the brothers and sisters of the said testator, then alive, and the legal representatives of such of them as were then deceased.

Whether John M. Barr died with or without issue, the entire object of the trust was fulfilled, and its functions were exhausted when the persons for whose benefit it was [*471 created ceased to live. "The remainder of the estate in said farm," in the language of the testator, thereupon passed according to the provisions of the will. It is neither expressed nor implied that the trust estate should exist any longer, and no imaginable purpose could a trust has been created, it is to be held large enough to enable the trustee to accomplish the objects of its creation. If a fee-simple estate be necessary, it will be held to exist though no words of limitation be found in the instrument by which the title was passed to the trustee, and the estate created. On the other hand, it is equally well settled that where no intention to the contrary appears, the language used in creating the estate will be limation. And when they are satisfied, the estate of the trustee ceases to exist, and his title becomes extinct. The extent and duration of the estate are measured by the objects of its creation.

The determination of this point is not vital in the case; for whether they took the legal fee or not, and whether the estate of Mary Jane Barr was legal or equitable in its character, the result must be the same. The same rules of law apply to descents and devises of both 470*1 classes of estates; and *if in this case an equitable fee in remainder was vested in Mary Jane Barr at the time of her death, while the legal fee as a dry trust was held by the sons-in-law, those holding the latter title could not recover in this action against parties clothed with the equitable estate, and entitled to the entire beneficial use of the property. 4 Kent, Com. 334, 335; Brydges v. Brydges, 3 Ves. 127; Cholmondeley v. Clinton, 2 Jac. & W. 148; Brydges v. Chandos, 2 Ves. 417; Walton v. Walton, 7 Johns. Ch. 270; Cincinnati v. White, 6 Pet. 441. But we entertain no doubt upon the subject.

The devise contains words of inheritance. It is to the trustees "and to their heirs." This language, if unqualified by anything else in the clause, would pass the fee. But when we look to the purposes of the trust, and the power and duties of the trustees, we find them limited to two objects:

Jarman says (2 Jarm. Wills, 156): "Trustees take exactly the estate which the purposes of the trust require; and the question is not whether the testator has used words of limitation, or expressions adequate to carry an estate of inheritance, but whether the exigencies of the trust demand the fee simple, or can be satisfied by any, and what, less estate.

Chancellor Kent says: "The general rule is that a trust estate is not to continue beyond the period required by the purposes of the trust; and notwithstanding the devise to the trustee and their heirs, they take only a chattel interest where the trust does not require an estate of higher quality. 4 Kent, Com. 233; Webster v. Cooper, 14 How. 499; Neilson v. Lagow, 12 How. 110; Doe v. Hicks, 7 T. R. 437; Curtis v. Price, 12 Ves. 99; Morrant v. Gough, 7 B. & C. 206; 1 Greenl. Cruise, 359, note.

2. If John M. Barr should die, leaving issue, nd his wife Maria should survive him, then they were to permit her, during her life, to enjoy the possession and profits of the property. A drier trust could not have been created. The duties of the trustees were wholly passive. They were authorized to do no act. They were simply to hold the estate committed to them until one or both the events defining the boundary of its existence had occurred. It was to subsist in any event during the life of John M. Barr, and if he died, leaving issue, and his wife survived him, it was to subsist also during her life. The executors were directed, in any event, to make an expenditure upon the proper ty, and to take the fund from the personal estate. This duty had no connection with the trust, and its bearing upon the case is in nowise affected by the fact that the executors and

to consider.

*We are of opinion that the trust [*472 estate of the sons-in-law of the testator was only an estate per autre vie, and that it terminated at the death of Maria Barr.

II. This brings us to the consideration of the question: what was the estate, in quantity and quality, of Mary Jane Barr at the time of her decease?

The hinge upon which turns this part of the controversy is the following language of the will:

"And upon the decease of the said Maria Barr, wife of the said John M. Barr, in case she survive him; if not, then upon the decease of the said John M. Barr, I do further give and devise the remainder of my estate in said farm unto the legitimate child or children of the said John M. Barr, and their heirs forever. If my said son leave but one child, as aforesaid, then I give the said farm to him or her, or his or her

*

The plaintiff in error claims that this clause is an executory devise, and that it gave to Mary Jane Barr a contingent estate, to take effect upon the event of her outliving both her parents, and not otherwise; and that as she died before her mother, no title or interest ever vested in her.

The defendants claim that upon the death of the testator, Mary Jane Barr took under the will a vested remainder, subject to open and let in after-born children, if any there were, and deferred as to the period of enjoyment until the death of the one parent who should survive the other, but liable to no other contingency, and limited by no other qualification.

This point of the will must be examined by its own light, and also in the light of the ad judications in like case.

Considering it without the aid of authority, 473*] we have no *difficulty in coming to a conclusion as to its proper construction. We think that it gives:

1. A legal estate per autre vie, to three sonsin-law in trust.

2. An equitable life estate, with the usufruct of the property to John M. Barr.

3. In case he should die, leaving issue, and his wife Maria should survive him, then an equitable estate for life to her with the usufruct of the property, for the benefit of herself and the surviving child or children of John M. Barr.

4. A vested remainder in fee simple to the child of John M. Barr, living at the time of the death of the testator, subject to open and let in the participation of after-born children, and liable to be devested by their dying before their father, but not liable to be defeated by any other event.

5. The devise over to the three sons-in-law was an alternate or collateral contingent remainder; and if John M. Barr had died leaving no children surviving him, that remainder would thereupon at once have vested and been converted into an absolute fee-simple estate. Luddington v. Kime, 1 Ld. Raym. 203; Dunwoodie v. Reed, 3 Serg. & R. 452, Ch. J. Gibson's opinion.

In no event, except the death of John M. Barr without issue, did the will give them any interest in the property other than the temporary trust estate.

By the vesting of the remainder in Mary Jane Barr, at the death of the testator and the death of her father, this provision in behalf of the sons-in-law became as if it were not. It was utterly annulled and could not thereafter take effect either as a contingent remainder or as an executory devise. We are satisfied the testator did not extend his vision or seek to control this property beyond the period of the death of his son, John M. Barr. With a view to that event he made two provisions equally

The language used carried the entire estate of the testator in the premises alike in both cases, and we can no more hold the word "heirs" to be the synonym of "issue," or otherwise qualify the estate intended to be given, in the one case than in the other.

The theory of the counsel for the plaintiff derives no support from the principle of human nature, which not unfrequently impels a testator to transmit his property, as far as possible in the line of his descendants. Here Barr, Keys, and Enness were not of the blood of the testator. He could not but be aware that if they took the property it might pass from them by descent or purchase, to those who were strangers to his blood, and in nowise connected with his family.

Having disposed of the property absolutely at the death of his son, he left the future, beyond that boundary, with its undeveloped phases, whatever they might be, to take care o itself.

III. We will now examine the case in the light of principle and authority.

A vested remainder is where a present interest passes to a certain and definite person, but to be enjoyed in futuro. There must be a particular estate to support it. The remainder must pass out of the grantor or the creation of the particular estate. It must vest in the grantee during the continuance of the estate, or eo instanti that it determines.

A contingent remainder is where the estate in remainder is limited either to a dubious and uncertain person, or upon the happening of a dubious and uncertain event.

A contingent remainder, if it amount to a freehold, cannot be limited on an estate for years, nor any estate less than freehold. A contingent remainder may be defeated by the determination or destruction of the particular estate before the contingency happens. Hence, trustees are appointed to preserve such remainders.

An executory devise is such a deposition of real property *by will that no estate [*475 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. 2 Bl. Com. chap. 12.

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. Johnson v. Valentine, 4 Sandf. 43; Wrightson v. Macaulay, 14 M. & W. 240; Chew's Appeal, 37 Pa. 28; Moore v. Lyons, 25 Wend. 126; Phipps v. Wil liams, 5 Sim. 44; Gold v. Judson, 21 Conn. 622;

Redfield, Wills, 379; Finlay v. King, 3 Pet. 374; Asay v. Hoover, 5 Pa. 28; Carver ▾ Jack son, 4 Pet. 92; Purefoy v. Rogers, 2 Saund. 388; Doe v. Morgan, 3 T. R. 765; Nightingale v. Burrell, 15 Pick. 110.

Adverbs of time-as where, thereafter, from, etc.-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. Johnson v. Valentine, 4 Sandf. 43; Moore v. Lyons, 25 Wend. 119; Boraston's Case, 3 Coke, 120; Minnig v. Batdorff, 5 Pa. 506; Rives v. Frizzle, 8 Ired. Eq. 239.

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 afterwards. Johnson v. Valentine, 4 Sandf. 45; Doe v. Provoost, 4 Johns. 61; Chew's Appeal, 37 Pa. 28; Doe v. Ward, 9 Ad. & El. 582, 607; Hancock v. Hancock, 4 Dow. 203; Doe v. Nowell, 1 M. & S.. 334; Bromfield v. Crowder, 1 B. & P. (N. R.) 326; Phipps v. Ackers, 9 Cl. & F. 583; Doe v. Prigg, 8 Barn. & C. 235; Minnig v. Batdorff, 5 Pa. 505; Gold v. Judson, 21 Conn. 623.

476*] *An estate once vested will not be devested unless the intent to devest clearly appears. Chew's Appeal, 45 Pa. 232; Harrison v. Foreman, 5 Ves. 208; Doe v. Perryn, 3 T. R. 493; Smither v. Willock, 9 Ves. 234.

The law does not favor the abeyance of estates, and never allows it to arise by construction or implication. Com. Dig., Abeyance, A. E.; Catlin v. Jackson, 8 Johns. 549; Ekins v. Dormer, 3 Atk. 534.

"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." Preston, Estates, 70.

This rule is thus stated with more fullness by the supreme court of Massachusetts: "Where a remainder is limited to take effect in posses❝ion, 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 remainderman 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." Blanchard v. Blanchard, 1 Allen, 227.

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." Doe v. Prigg, 8 Barn. & C. 231. 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 certainty that the possession will [*477 ever become vacant while the remainder continues." Williamson v. Field, 2 Sandf. Ch. 533. It is further said in the same volume (p. 284): "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 afterwards 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." Doe v. Perryn, Buller's op.; Right v. Creber, 5 B. & C. 866; Sisson v. Seabury, Story, J., 1 Sumn. 243; Hannan v. Osborn, 4 Paige, 336; Marsellis v. Thalhimer, 2 Paige, 35. 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. Harrison v. Foreman, 5 Ves. 208; Belk v. Slack, 1 Keen, 238; Bromfield v. Crowder, 1 B. & P. (N. R.), 325; Danforth v. Talbot, 7 B. Mon. 624; Goodtitle v. Whitby, 1 Burr. 234; Moore v. Lyons, 25 Wend. 119; Randoll v. Doe, 5 Dow. 204; Edwards v. Symons, 6 Taunt. 214; Phipps v. Ackers, 9 Cl. & F. 583; Stanley v. Stanley, 16 Ves. 506; Doe v. Nowell, 1 M. & S. 334; Boraston's Case, 3 Coke, 52; Doe v. Ewart, 7 Ad. & El. 636; Minnig v. Batdorff, 5 Pa. 503.

This doctrine received the sanction of the supreme court of Ohio in Jeffers v. Lampson, 10 Ohio St. 101, 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.

*The same doctrine has been sanc- [*478 tioned by this court. Finlay v. King, 3 Pet. 376; Carver v. Jackson, 4 Pet. 1; Williamson v. Berry, 8 How. 495; Croxall v. Sherrerd [ante, 577]; Washb. Real Prop. 229; 1 Greenl. Cruise, tit. Remainder.

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, 4 Pet. 1, the court says: "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, 1 Burr. 233, Lord Mansfield said: "Here, upon the reason of