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Effie McA. Allen, the four surviving children of Mrs. Anderson, the three children of Mrs. Madeira, and numerous purchasers of different parcels of land from the parties to the proceeding for partition. The present bill (without mentioning the proceeding to annul the probate, set forth in the answers) alleged that, immediately after the death of Duncan McArthur, his five children, desiring to obtain for themselves the whole of his real and personal estate, and to deprive his grandchildren of all the provisions intended for them by his will, unlawfully combined and confederated with other persons, and, contriving to defraud the plaintiffs, procured and brought about the tender and acceptance of the resignations of the executors, and appropriated to their own use all his personal property, and, by means of the proceeding in partition above mentioned, divided all his lands among themselves, and conveyed parts of the same to other persons, and, in defense of their fraudulent conspiracy and doings, pretended that he died intestate, and they as his children had inherited his lands. These allegations were denied in the answers.
At the hearing upon bill and answers, the circuit court dismissed the bill, and the plaintiffs appealed to this court.
Wm. M. Ramsey and L. Maxwell, Jr., for appellants.__R. A. Harrison, P. C. Smith, W. T. McClintock, H. F. Page, and John W. Herror, for appellees. *GRAY, J. This case presents three principal questions: First. Whether* the equitable estate in fee, which Duncan McArthur, by his will, undertook to devise to his grandchildren, children of his five surviving children, was vested or contingent. Second. Whether the devise of that estate, so far as it is to the present plaintiffs, was void for remoteness. Third. Whether the decree in 1833, setting aside his will, and annulling the probate, is a bar to this suit.
1. The principal provisions of the will of Duncan McArthur, material to the decision of this case, are as follows:
By the fifteenth clause, he directs that his lands in the counties of Ross and Pickaway shall be leased or rented by his executors "until the youngest or last grandchild which I now have, or may hereafter have," the child of either of his five surviving children, Allen C., James McD., Effie, Eliza Ann, or Mary, "who may live to be twenty-one years of age, shall arrive at that age." By the sixteenth clause, he directs that, until that time, the income of these lands, and the dividends of all stocks held by him, or purchased by his executors, shall be by them annually divided equally among the five children aforesaid, or the issue of any child dying, and among the grandchildren also as they successively come of age.
The seventeenth clause provides as follows: "It is my further will and direction that after the decease of all my children now living, and when and as soon as the youngest or last grandchild, in the next preceding clause but one of this will designated and described, shall arrive at the age of twenty-one years all my lands" in question "shall be inherited and equally divided between my grandchildren per capita, the lawful issue of my said sons and daughters, Allen C., James McD., Effie, Eliza Ann, and Mary, for them and their heirs forever, to have and to hold, or to sell and dispose of the same at their will and pleasure; and in like manner all the stocks belonging to my said estate, whether invested before or after my death, shall at the same time be equally divided among my said grandchildren, share and share alike, per capita; but it is to be understood to be my will and direction that if any grandchild aforesaid shall have died before said final division is made, leaving a child or children lawfully begotten, such child or children shall take and receive per stirpes (to be equally divided between them) the share of my said estate, both real and personal, which the parent of such deceased child or children would have been entitled to have and receive if living at the time of such final distribution." The word "deceased," near the end of this passage. was evidently intended to be prefixed to the word "parent," instead of to the
words "child or children," so as to read "deceased parent of such child o children." By the eighteenth clause, he directs that "in such final distribu. tion of my lands" the executors for the time being shall make deeds of parti tion "to and in the names of those who may be thus entitled thereto;" and, "to enable my executors the more effectually to execute the powers and duties by this will devolved upon them, and to protect my said children and grandchil dren against fraud and imposition," he devises the lands to his executors and their successors, "and to their heirs, in trust for the uses and purposes and objects expressed in this my will, and the performance of which is herein above directed and prescribed, to have and to hold the title thereof till such final division or partition thereof, and no longer." By the twenty-fourth clause, he appoints three executors, and directs and requests that if either of them shall die, resign, or refuse to act, the court having probate jurisdiction for the county of Ross shall appoint a new one instead to act as an executor with the others, so that there shall always be three executors.
The devise in the eighteenth clause of the title in the lands to the executors and their successors, and their heirs, in trust for the uses and purposes expressed in the will, to have and to hold until the final division or partition, clearly gave them an estate in fee, to last until that time. Doe v. Edlin, 4 Adol. & E. 582; Maden v. Taylor, 45 Law J. (N. S.) c. 569. And there can be no doubt that, as contended by the learned counsel for the defendants, the powers conferred and the trusts imposed upon the executors were annexed to their office of executors, and did not make them trustees in another and different capacity. Colt v. Colt, 111 U. S. 566, 581; S. C. 4 SUP. CT. REP. 553; Treadwell v. Cordis, 5 Gray, 341, 358; Gandolfo v. Walker, 15 Ohio St. 251. The equitable estate created by the gift in the sixteenth clause of the income to the children and grandchildren, being an estate which must endure for the lives of the children, and might endure throughout the lives of the grandchildren, though subject to be sooner determined in the contingency of the coming of age of the youngest grandchild, was technically an estate for life. 2 Bl. Comm. 121. The nature of the equitable estate in remainder created by the seventeenth clause demands more consideration. The counsel for some of the defendants contended that it was contingent upon the arrival of the youngest grandchild at 21 years of age. In that view, the whole estate in remainder, being dependent upon the termination of the particular estate for life, and vesting at that time and not before, would be in legal effect an equitable contingent remainder to the grandchildren then living, and the issue then living of grandchildren theretofore deceased, as one class.
In behalf of other defendants it was contended that the remainder in fee expectant upon the estate for life vested immediately in the grandchildren living at the death of the testator, opened to let in after-born grandchildren, and vested in them successively at birth, and would be divested as to the shares of those grandchildren only who should die, leaving children, before the determination of the life-estate, by force of the direction that such children should take those shares. In this view, all the grandchildren took a vested remainder in fee; and the gift over to the children of any deceased grandchild, inasmuch as it did not depend upon any precedent particular estate, but was by way of substitution for the devise in fee to that grandchild, was an executory devise.
For many reasons, not the least of which are that testators usually have in mind the actual enjoyment rather than the technical ownership of their property, and that sound policy as well as practical convenience require that titles should be vested at the earliest period, it has long been a settled rule of construction in the courts of England and America that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent upon a future event.
In the will before us the testator directs the income to be divided annually, in specified and changing proportions, among his five children living at his death, and their children, until the youngest grandchild comes of age. He gives no part of the income to children of grandchildren. He gives the fee, when the youngest grandchild comes of age, to the grandchildren and the children of deceased grandchildren. His general intent clearly is to give the income of the estate to the children and grandchildren so long as any grandchild is under age, and the principal to the issue of the five children, whether such issue are his grandchildren or his great grandchildren.
If all the children and grandchildren should die before any grandchild should come of age, the distribution of the income would necessarily cease. In that event, if any of the grandchildren dying under age should leave children, the effect of holding the remainder to be contingent upon the coming of age of the youngest grandchild would, as that contingency had never happened, cut off the great grandchildren from any share in the estate, in direct contravention of the general intent of the testator. The more reasonable inference is that, upon the determination of the life-estate by the death of all the children and grandchildren, for whose benefit it was created, the great grandchildren would be immediately entitled to the remainder. Castle v. Eate, 7 Beav. 296; Manfield v. Dugard, Gilb. Eq. 36; S. C. 1 Eq. Cas. Abr. 195, pl. 4. Upon that construction, the contingency contemplated must necessarily happen at some time, either by the arrival of the youngest grandchild at 21 years of age, or by the death of all the grandchildren under age; and the case would come within the settled rule that "where a remainder is so limited as to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event which must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainder-man 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." Doe v. Considine, 6 Wall. 458, 476; Moore v. Lyons, 25 Wend. 119, 144; Blanchard v. Blanchard, 1 Allen, 223, 227. The terms in which the testator has expressed his intention likewise point to a vesting of the remainder in all his grandchildren. The only gift of real estate in remainder to grandchildren is contained in the opening words of the eighteenth clause, by which the testator directs that "after the decease of all my children now living, and when and as soon as the youngest grandchild shall arrive at the age of twenty-one years," the lands "shall be inherited and equally divided between my grandchildren per capita, the lawful issue of my said sons and daughters," in fee. This gift is not to such grandchildren only as shall be living at the expiration of the particular estate; but it is to "my grandchildren per capita, the lawful issue of my said sons and daughters," words of description appropriate to designate all such grandchildren. At the expiration of the particular estate, the lands are to be "inherited and equally divided" among the grandchildren, and "in like manner" the stocks are to be "equally divided" among them. The real estate and the personal property are clearly to go to the same persons and at the same time. The word "inherited," which is applied to the real estate only, implies taking immediately from the testator upon his death, as heirs take immediately from their ancestor upon his death. Devises or bequests in remainder, by the use of similar words, though preceded, as in this case, by the word "then," have been often held to be vested from the death of the testator. Bullock v. Downes, 9 H. L. Cas. 1; Mortimore v. Mortimore, L. R. 4 App. Cas. 448; Parker v. Converse, 5 Gray, 336; Dove v. Torr, 128 Mass. 38. The case of Thorndike v. Loring, 15 Gray, 391, cited for the defendants, is clearly distinguished by the fact that there the bequest of the principal, at the expiration of fifty years, was confined to "those who would then be my lawful heirs and entitled to my estate, if I had then died intestate."
The words "and equally divided per capita," while they qualify the effect of the word "inherited" so far as to prevent a taking by the grandchildren per stirpes as under the statute of descents, also plainly indicate a vested remainder. Words directing land to be conveyed to or divided among remainder-men after the termination of a particular estate are always presumed, unless clearly controlled by other provisions of the will, to relate to the beginning of enjoyment by the remainder-men, and not to the vesting of the title in them. For instance, under a devise of an estate, legal or equitable, to the testator's children for life, and to be divided upon or after their death among his grandchildren in fee, the grandchildren living at the death of the testator take a vested remainder at once, subject to open and let in after-born grandchildren; although the number of grandchildren who will take, and consequently the proportional share of each, cannot of course be ascertained until the determination of the particular estate by the death of their parents. Doe v. Considine, 6 Wall. 458; Cropley v. Cooper, 19 Wall. 167; Dingley v. Dingley, 5 Mass. 535; Doe v. Provoost, 4 Johns. 61; Linton v. Laycock, 33 Ohio St. 128; Doe v. Perryn, 3 Term R. 484; Randoll v. Doe, 5 Dow, 202. So, a direction that personal property shall be divided at the expiration of an estate for life creates a vested interest. Shattuck v. Stedman, 2 Pick. 468; Hallifax v. Wilson, 16 Ves. 168; In re*Bennett's Trust, 3 Kay & J. 280; Strother v. Dutton, 1 De G. & J. 675.
The remainder, being vested according to the legal meaning of the words of gift, is not to be held contingent by virtue of subsequent provisions of the will, unless those provisions necessarily require it. The subsequent provisions of this will had other objects. The direction that if any grandchild shall have died before the final division, leaving children, they shall take and receive per stirpes the share of the estate, both real and personal, which their parents would have been entitled to have and receive if then living, was evidently intended merely to provide for children of a deceased grandchild, and not to define the nature, as vested or contingent, of the previous general gift to the grandchildren; and its only effect upon that gift is to divest the share of any grandchild deceased leaving issue, and to vest that share in such issue. Smithers v. Willock, 9 Ves. 233; Goodier v. Johnson, L. R. 18 Ch. Div. 441; Darling v. Blanchard, 109 Mass. 176; 1 Jarm. Wills, (4th Ed.) 870.
The addition, in the eighteenth clause of the will, of the provisions that any assignment, mortgage, or pledge by any grandchild of his share shall be void, and that the executors, in the final partition and distribution, shall convey and pay to the persons entitled under the will, rather tends to show that the testator considered the estate to be vested, and to be in danger of being alienated but for these provisions; and, whatever their legal effect may be, they cannot be construed as making a remainder contingent, which the terms of the previous gift, and the general intent of the testator, as appearing from the whole will, require to be vested. Hall v. Tufts, 18 Pick. 455. For these reasons, we are of opinion that the will purports to devise to all the grandchildren per capita, children of the five surviving children of the testator, a vested remainder in fee; and to the children per stirpes of any grandchildren deceased before the arrival of the youngest grandchild at 21 years of age, a similar estate in fee by way of executory devise.
2. To come within the rule of the common law against perpetuities, the estate, legal or equitable, granted or devised, must be one which, according to the terms of the grant or devise, is to vest upon the happening of a contingency which may by possibility not take place within a life or lives in being (treating a child in its mother's womb as in being) and 21 years afterwards. In the case at bar, as the youngest grandchild must be in being in the life-time of his parent, and that parent was born in the testator's life-time, the devise to the grandchildren, and even the devise over, upon the arrival of the youngest grandchild at 21 years of age, to the children of any grand
child deceased before that time, must necessarily take effect, as to every devisee, within a life or lives in being and 21 years afterwards, and therefore do not violate the rule of the common law; and it is unnecessary to consider whether that rule is in force in Ohio.
The statute of Ohio of December 17, 1811, in force at the making of this will, and at the testator's death, imposed different restrictions upon grants and devises of real estate, by enacting that "no estate in fee-simple, fee-tail, or any lesser estate, in lands or tenements lying within this state, shall be given or granted by deed or will to any person or persons, but such as are in being, or to the immediate issue or descendants of such as are in being, at the time of making such deed or will." 2 Chase's St. 762.
It was assumed at the argument, and can hardly be doubted, that in this statute the words "the time of making such deed or will," which, as applied to a deed, designate the time both of its execution and of its taking effect, denote, as applied to a will, the time when it takes effect by the death of the testator, and not the date of its formal execution. By the law of England, the question of remoteness depends upon the state of facts at the time of the testator's death, though differing from that existing at the date of the will. Williams v. Teale, 6 Hare, 239, 251; Cattlin v. Brown, 11 Hare, 372, 382; Lewis, Perp. Supp. 53-60, 64; 1 Jarm. Wills, 254.
Under the common-law rule against perpetuities, a devise to a class, some members of which may possibly not take within the prescribed period, is wholly void. Leake v. Robinson, 2 Mer. 363; Pearks v. Moseley, L. R. 5 App. Cas. 714. But that is because, as observed by Sir WILLIAM GRANT, "it is the period of vesting and not the description of the legatees, that produces the incapacity," and the devise is not "to some individuals who are, and to some who are not, capable of taking." 2 Mer. 388, 390. The rule of the common law, by which an estate devised must at all events vest within a life or lives in being and 21 years afterwards, has reference to time and not to persons. Even the "life or lives in being" have no reference to the persons who are to take, for the testator is allowed to select, as the measure of time, the lives of any persons now in existence; and the "twenty-one years afterwards" are not regulated by the birth or the coming of age of any person, for they begin, not with a birth, but with a death, and are 21 years in gross, without regard to the life or to the coming of age of any person soever. Cadell v. Palmer, 1 Clark & F. 372; S. C. 7 Bligh, (N. S. 202.)
It is doubtful, to say the least, whether the like effect can be attributed to the statute of Ohio, which has no reference to time, and only avoids devises to persons who are not either in being themselves, or the immediate issue or immediate descendants of persons in being at the time of the making of the will. The devise of their parent's share to the children of any grandchild deceased before the time of division would seem to be valid as to those great grandchildren whose parent, a grandchild of the testator, was living at the time of his death, because they would be "immediate issue" of a person in being at that time; and valid also as to any great grandchildren whose parent, though born after the testator's death, had died before their grandparent, a child of the testator, because they would be, if not "immediate issue," certainly "immediate descendants," of that child who was in being at that time; and invalid as to those great grandchildren only, whose parent, (as in the case of Mrs. Madeira, daughter of the testator's child Mary Trimble,) born since the testator's death, died after their grandparent, and who, therefore, by reason of the interposition of the life of their parent, were neither "immediate issue" nor "immediate descendants" of a person in being when the testator died. See Stevenson v. Ecans, 10 Ohio St. 307; Turley v. Turley, 11 Ohio St. 173. But, however that may be, the conclusion, already announced, that the estate in remainder devised by Duncan McArthur was vested in all his grandchildren per capita, with an executory devise over of the shares of