*382

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.

383

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

*385

those only who should die, leaving issue, before the final division, removes all difficulty in the application of the statute to the shares devised to the plaintiffs, grandchildren of the testator; for the devise to grandchildren, immediate issue of persons in being at the making of the will, was clearly not prohibited by the statute; and, even under the English rule, the executory devise over of the shares of deceased grandchildren to their children, if void for remoteness, would not defeat the previous valid devise of a vested remainder to the grandchildren, nor alter the share which each living grandchild would take. Cattlin v. Brown, 11 Hare, 372; Lord SELBORNE, in Pearks v. Moseley, L. R. 5 App. Cas. 719, 724, 725; Goodier v. Johnson, L. R. 18 Ch. Div. 441.

The necessary conclusion is that these plaintiffs, being grandchildren of the testator, took equitable vested remainders under his will. But until the termination of the particular estate by the death of all the testator's children, and the arrival at the age of 21 years of the youngest grandchild who reached that age, the legal estate in fee being in the executors, the grandchildren owning the equitable estate in remainder had no right to a conveyance of the legal title. The present bill, filed little more than a year after one of the plaintiffs, who was the youngest grandchild of the testator who lived to the age of 21 years, arrived at that age, must therefore be maintained, unless the title of the plaintiffs, under the will of their grandfather, has been defeated by the decree rendered in 1839, setting aside the will.

3. The proceedings relating to the will of Duncan McArthur were had under the statute of Ohio, of February 18, 1831, the material provisions of which are as follows:

By section 7, a will bequeathing or devising any personal property or real estate may be brought by the executors, or by any person interested therein, before the court of common pleas, and the testimony of the attesting witnesses reduced to writing; and if it shall thereupon appear that the will was duly executed, and that the testator was of full age and of sound mind and memory, and not under any restraint, the court shall order the will, together with the proof so taken, to be recorded. By section 13 the will is to be recorded in every county in which there is any land devised. By section 16, if the executor named in any will dies or refuses to act, or if no executor is named therein, the court may receive the probate of the will and grant letters of administration with the will annexed. The statute also contains the following sections:

"Sec. 20. If any person interested shall, within two years after probate had, appear, and by bill in chancery contest the validity of the will, an issue shall be made up whether the writing produced be the last will of the testator or testatrix or not; which shall be tried by a jury, whose verdict shall be final between the parties, saving to the court the power of granting a new trial, as in other cases; but if no person appear in that time the probate shall be forever binding; saving also to infants, married women, and persons absent from the state, or of insane mind or in captivity, the like period after the removing of their respective disabilities."

"Sec. 22. Appeals may be had from the decision of the court of common pleas to the supreme court, when any will or other matter relating thereto shall have been contested. 3 Chase's St. 1786-1788.

""

The forms of procedure thus prescribed with regard to the original probate of a will, and the subsequent setting aside of the probate, are in some respects peculiar, and their effect has been fully defined by decisions of the supreme court of Ohio. The original probate on the testimony of the attesting witnesses, under section 7, is analogous to the probate in England in common form. The subsequent proceeding by bill in equity, under section 20, to contest the validity of the will, is analogous to the probate in solemn form by the executor upon being cited in by the next of kin; and the jurisdiction

exercised by the court and jury is virtually that of a court of probate. Both stages of the proceedings extend to the real estate as well as to the personal property, differing in this respect from the former English probates. Upon the subsequent contest, as upon the original probate, the only issue is will or no will, and the court has not the powers of a court of construction, and has no authority to pass upon the question whether the devises in the will are void for remoteness. Mears v. Mears, 15 Ohio St. 90. The form of issue being prescribed by the statute, no answer is necessary, and, if one is filed, it cannot be read at the trial of the issue. Green v. Green, 5 Ohio, 278. The position of the parties on the record, as plaintiffs or defendants, is immaterial; all are actors; and if some of the heirs are made plaintiffs and some defendants, all have an equal right to contest the will. Runyan v. Price, 15 Ohio St. 1, 6; Bradford v. Andrews, 20 Ohio St. 208, 220.

The bill in equity is so far in the nature of an appeal from the original probate that the same issue is to be tried anew. Haynes v. Haynes, 33 Ohio St. 598, 618. But, strictly speaking, it is an original proceeding on the chancery side of the court of common pleas, and does not, until final decree, vacate or affect the probate. "The statutory contest of a will lacks the essential elements of an appeal. It has not the same parties as in the court below. In the latter, in fact, it is purely ex parte, while in the common pleas it is inter partes." Bradford v. Andrews, 20 Ohio St. 222. The original probate cannot be impeached, except in the form of proceeding given by the statute. Swazey's Heirs v. Blackman, 8 Ohio, 5, 19; Bailey v. Bailey, 8 Ohio, 239, 246; Mosier v. Harmon, 29 Ohio St. 220. Even while such a proceeding is pending, and until set aside by the final decree therein, the probate is conclusive evidence of the validity of the will, as against all persons, in a collateral suit. Brown v. Burdick, 25 Ohio St. 260.

In a proceeding under the statute to contest the validity of a will, it is error to render final judgment upon a demurrer to the answer; because the provision of the statute, requiring an issue to be made up and tried by a jury, is imperative in its terms, and " was deliberately enacted with a view to prevent a disposition of cases for the contest of wills upon the mere consent or ac-* quiescence of parties in any form.” Walker v. Walker, 14 Ohio St. 157, 176. If a bill to contest the validity of a will is seasonably filed by an infant heir who is within the saving clause of the statute, and there is no defect of parties defendant, and the instrument is found to be no will, the proper decree is to annul the whole order of probate. Meese v. Keefe, 10 Ohio, 362. But persons claiming under the will admitted to probate, who are not made defendants to the bill to set it aside, are not bound, or their rights affected, by the decree upon that bill; and may treat it as a nullity, and maintain actions, against any one claiming under it, for lands devised to them by the will as originally admitted to probate. Holt v. Lamb, 17 Ohio St. 374.

The case of Holt v. Lamb, just referred to, decided in 1867, has so important a bearing on the case at bar that it will be appropriate to state it with some fullness. Sarah Stevenson devised land to her brother George for life, and after his death to be sold and divided between his four daughters, and appointed him her executor. Upon a bill in chancery, filed under the statute against him and another brother by the other brothers and sisters and heirs at law of the testatrix, (to which those daughters, the devisees in remainder, were not made parties,) alleging that the will was not duly executed, and that the testatrix was of unsound mind, and an answer filed by him, denying these allegations, the court in 1826, without framing or submitting any issue to a jury, entered a decree setting aside the will. In 1827, upon a petition for partition between the brothers and sisters of the testatrix, the land was ordered to be sold, and was sold and conveyed to a stranger, who afterwards sold and conveyed it to another person. George died in 1863, and his four daughters, with their husbands, brought an action against the last purchaser,

888.

68%.

"

and the heirs at law of the testatrix to recover the land. That case was elaborately and learnedly argued, and the defense was rested on similar grounds to those taken in the case at bar. It was contended that the suit to contest the validity of the will was a proceeding in rem; that the plaintiffs were not necessary parties to it; that they were parties by representation of George Stevenson, the executor, who appeared and filed an answer in the cause, and defended their interests; that if they should have been made parties, the omission to make them parties did not render the decree void against them, and could be availed of only by applying to the court in which that cause was pending to be made parties, or by proceedings in that court to impeach the decree for irregularity; and that they might not have been within the jurisdiction of the court, and subject to its process; and after so great a lapse of time it must be presumed that the court, for good reasons, declined to order them to be brought in. 17 Ohio St. 381, 382. But the supreme court of Ohio, after observing that it had been expressly decided in Walker v. Walker, above cited, that the omission of a jury rendered the decree at least voidable on appeal, and that it was unnecessary to determine whether that omission rendered the decree absolutely void, gave judgment in favor of the plaintiffs, upon the ground that, not having been made parties to the bill to set aside the will, their rights under the will, as originally admitted to probate, were not affected by the decree, and might be asserted in this action. Judge WELCH, delivering the opinion for the whole court, said: "But whatever effect may be given to the decree, or to the verdict of a jury in such case, we have no hesitation in saying that that effect must be confined to the parties' in the cause. The words the parties,' in the section quoted, can have no other legitimate meaning than that of parties to the proceeding. This is their primary legal meaning, and that such is their import here is quite obvious from their being used in connection with the subject of a bill in chancery,' which, of itself, implies proper parties. That meaning is made still more obvious from the fact that to give the words any other meaning would do injustice, by depriving persons in interest of a day in court. The meaning cannot be parties in interest, because such had been spoken of before as 'persons interested;' and in the subsequent clause, where the effect of the probate is declared, it is said it shall be forever binding,' without naming any parties upon whom it is to be so binding. If the same meaning was intended in both places, why were different forms of expression employed? Why use the words 'between the parties' in the one case, and omit them in the other? It seems to us quite plain that it was because the intention was to express what, in fact, ought to be implied in all proceedings in 'chancery,' that none but the parties' to the proceeding were to be bound thereby." "The decree setting aside the will, if binding at all, was binding only between the parties;' and it binds those parties by way of estoppel. Although the will may be, in fact, a lawful, valid will, the parties to the decree are estopped by it from asserting or proving it to be such will. But the plaintiffs are not so estopped. As to them, it is a valid and subsisting will. They are still estopped by the probate from denying that it is such will. It is to them as though the chancery case had never been commenced. Their rights stand wholly unaffected by the proceeding.' 17 Ohio St. 385-387.

•

99

In Bradford v. Andrews, above referred to, decided in 1870, it was held that where a proceeding to contest the validity of a will was commenced, within the statutory period of limitation, by some of the heirs only, the right of action was saved to other heirs who were ultimately made parties, and who by their answers joined in the prayer to set aside the will, although they were not brought into the case until after the period of limitation had expired. In the opinion of the court, also delivered by Judge WELCH, it was said: "If any person interested appears, and in good faith files his petition for a contest, the statute entitles him to a trial and a verdict by a jury, touching the validity of