would tend to confirm the impression. Moreover, the whole paragraph shows beyond doubt that the testator intended to prefer his lineal descendants to the collateral branches of his family. After providing that his sons should take the estate by moieties, his mind went forward to the time of their death. The working of the natural instinct to keep the property in the family becomes evident. He does not say if either of my sons shall die "without heirs," but without "lineal descendants." He evidently chose his words, and the distinction is clear. It would not comport with his idea that the lineal descendants should take as heirs. Nor did he intend so wide a class. He made a distinct blunder if he discarded the familiar term "heirs" and employed the selection of "lineal descendants" if he had in mind a succession by inheritance, and not by purchase. We are now considering this paragraph as if it stood unaffected by anything else in the will, and we cannot but be much impressed by the considerations which tend to the conclusion that the testator intended that if the survivor of the sons should die leaving lineal descendants they should take the remainder.

Then, if this were doubtful, there is a long established rule of construction of devises in the law of real property, one of such as were referred to in the early part of our discussion of this subject, that when a devise can, without doing violence to the language of the testator, be construed as creating a remainder, it shall not be construed as being an executory devise. 3 Comyn's Dig. 450, Devises N. 17; Fearne on Remainder, 393; 6 Cruise Dig. Tit. 38, c. 17, § 11; Purefoy v. Rogers, 2 Saund. 380; 2 Washb. on Real Prop. (3d Ed.) 565; 4 Kent. Com. 263; Doe, dem. v. Considine, 6 Wall. 458, 475, 18 L. Ed. 869; Blanchard v. Blanchard, 1 Allen (Mass.) 223; Moore v. Lyons, 25 Wend. (N. Y.) 119, 126; Wolfe v. Van Nostrand, 2 N. Y. 436.

In Purefoy v. Rogers, supra, which has always been regarded as a leading case, the Lord Ch. J. Hale said:

"Where a contingency is limited to depend on an estate in freehold which is capable of supporting a remainder it shall never be construed to be an executory devise but a contingent remainder only, and not otherwise."

And in the note by Patterson and Williams to the Sixth Edition of Saunders, it is said that:

"This rule so laid down by Lord Hale has been uniformly adhered to ever since."

And upon the matter of construction Washburn says (second volume, 506, same edition), citing 2 Cruise Dig. 203:

"The term remainder, it should be observed, is not one of art which is necessary to employ in creating an estate in expectancy, such as has been. described. Any form of expression indicating the intention of the grantor or devisor to do this would be sufficient."

Executory devises were the creation of the judges to effectuate the intention of testators where their purpose could not take effect as the creation of a remainder. A good illustration of, this subject would be to suppose that in the present instance the testator had devised to each of his sons "his heirs and assigns" the moiety, etc., and

then in another place had devised the estate over upon the happening of some contingency. The estate going over could not take effect because there could be no remainder of an estate in fee simple. It is therefore construed to be an executory devise which will defeat the fee-simple estate. It is so done because the intent of the testator would be otherwise disappointed. The case of McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, 28 L. Ed. 1015, is one where both species of estates were created by the will. The testator devised his property to trustees who were to hold it until his children were dead and until his youngest grandchild should be 21 years old, whereupon the trustees were to divide and turn it over to his several grandchildren in fee, and if any of them should have died leaving children, then to the children of such grandchild. As to the grandchildren living at the time of distribution, it was held they took an estate in remainder; but as to the children of deceased grandchildren it was held that they took by way of an executory devise. This last result followed because of the death of those grandchildren before the expiration of the precedent estate in the trustees, and therefore a gift to them could not be held to be a remainder. But to give effect to the probable intention of the testator, it was construed as an executory devise.

The essential conditions on which there can be construed to be a remainder are that there must be a precedent estate which will necessarily terminate at some future time, and there must be nominated a person who will be in esse at the termination of the precedent estate competent to take the remaining estate. Both estates must be created at the same time and by the same act or instrument. And the one must begin when the other ends. The order and succession of the estates was a requirement of the feudal system in order that there should at all times be some one to perform the obligations due to the sovereign, or his immediate feudatory, from the tenant on account of his tenure. Enough remains of this requirement to support at least in technical contemplation the rule as it formerly existed. Now, if these provisions of Anderson's will be held to convey a life estate to the sons with remainder to his lineal descendants, we have the most common form of an estate in remainder. It is not necessary that the remainderman should be in esse at the time when the will is made or becomes effective by the death of the testator. It is enough if he is in being at the time when the estate vests in possession; that is, at the termination of the particular estate. If the remainderman is in esse at the death of the testator, the right vests immediately, if not, the right is suspended, but exists in consideration of law, until he comes into being, whereupon it vests, and in either case the estate will open to let in after-born remaindermen, if any such appear. Doe v. Perryn, 3 Term. R. 484; 3 Comyn's Dig. Estates, B. 13; 4 Kent Com. 206, note b; McArthur v. Scott, 113 U. S. 340, 380, 5 Sup. Ct. 652, 28 L. Ed. 1015.

The contention of the defendant rests upon the assumption that the language of the will imports a devise of an estate in fee simple to the sons of the testator, and this assumption would probably be well taken

if we looked only to that part of the will which devises the property to them. It is true there is no mention of heirs, but it would in the case supposed be implied that the testator intended to devise the whole estate. But the implication is removed, if from other provisions in the will it is seen that the testator did not intend to devise an unqualified estate. And it is to be observed that the defendant's contention proposes to cut down the fee simple which the earlier parts of the will are said to devise to the sons, by a condition that the sons shall leave lineal descendants. So, in either construction of the parties, the implication which would arise from the unqualified language of the devise to the sons cannot prevail. The generally accepted rule now is that an unqualified gift in wills to a devisee without mention of heirs imports a fee simple absolute; or, if the testator has not so great an interest therein, such an estate as he has. And this rule is incorporated in Rev. St. Ohio, 1906, § 5970. But this cannot apply here, as we have shown, for confessedly the gift was not of a fee simple absolute The conditions therefore exist for the application of the rule laid down by the Lord Ch. J. in Purefoy v. Rogers, supra.

The early rule in England was that such an implication as results from such language as is employed in this will would be sufficient to indicate that the testator meant that the lineal descendants of his sons should take an estate in remainder upon the death of the sons. In the early editions of Jarman on Wills, p. 465, the author in treating of estates by implication in wills, said:

"In the application of this principle, our chief topic of controversy has been how far a devise to any person, in the event of the nonexistence or on the decease of another indicates an intention to make the last-named person a prior object of the testator's bounty. In such cases it is probable that the person whose nonexistence is made the contingency on which the devise over is to fall into possession is placed in this position for the purpose of taking the property in the first instance; and this probability is of course greatly strengthened if the devisee is the person on whom the law in the absence of disposition would cast the property."

And there are several decisions of the courts in this country which have put the same construction upon such language. Shaw v. Hoard, 18 Ohio St. 228; Wetter v. United Hydraulic Cotton Press Co., 75 Ga. 540, where the foregoing passage from Jarman is quoted; Carr v. Green, 2 McCord (S. C.) 75. And Washburn, in his treatise on the Law of Real Property, lays down the rule in accordance with these decisions. He says:

"An instance of an estate tail by construction, where there is no direct limitation to the heirs of the donee's body, would be an estate to A. with a proviso that if he shall die without heirs of his body, the estate shall revert to the donor or go over to one in remainder. Here, it will be perceived, that there was no direct limitation to the heirs of A., and it is too plain for doubt that the donor intended the heirs of his body should take it at his decease, for he gives it over, or reserves it, in case he has no such heirs, and only in that contingency." 1 Washb. on Real Prop. (3d Ed.) 87; Id. (6th Ed.) § 192.

The case of Shaw v. Hoard, supra, is much in point; so like the present, that if a rule of construction be also a rule of law in its application to grants and gifts of real property and that case is the

law in Ohio, we should feel bound to accept it as controlling this question in the present case, if indeed we did not agree with it. In that case, the will of the testator contained the following items:

"Item 2. I give and bequeath unto my said wife and daughter all the real estate of which I may be seized at the time of my death, to each one-half. "Item 4. On the death of either my wife or daughter then the survivor shall have all the property left them by me; and if both die without leaving any heirs of their body, then and in that case, said property shall be given to my wife's brother, William Campbell."

The wife and daughter died leaving another daughter of the mother. It was held that the wife and daughter mentioned in the will took each a life estate and that upon the death of the survivor, the remainder went by implication to the other daughter, the "heir of her body." But it is said that that case is overruled by subsequent decisions of the Supreme Court of that state. The principal cases which are relied upon in support of this contention are Carter v. Reddish, 32 Ohio St. 1; Piatt v. Sinton, 37 Ohio St. 353; Collins v. Collins, 40 Ohio St. 353; and Durfee v. MacNeil, 58 Ohio St. 238, 50 N. E. 721. In the first of these cases, the judge (Chief Justice Day) who had delivered the opinion of the court in Shaw v. Hoard, was a member of the court. No intention to overrule the case of Shaw v. Hoard is indicated, nor is the case mentioned. But Judge Scott, who delivered the opinion, distinguishes a case involving the facts of Shaw v. Hoard. After referring to the cases of Parish's Heirs v. Ferris, 6 Ohio St. 563, and Niles v. Gray, 12 Ohio St. 320, cases upon which the later decisions referred to rest, he says:

"Still, we should have no hesitation in finding, from the language of the will before us, that the testator intended a life estate only for the first devises, if the sole condition of the limitation over to the nephews and nieces had been the dying of his children without issue, and without reference to the time when they should die. But such is not the language of the will." The difference was that the case supposed was the case, in its facts, of Shaw v. Hoard, and of this case, while in the case in which the judge was giving the opinion, the device over was in the contingency of the first devisee's dying within age and without lawful issue. The distinction rests upon the fact that the contingency on which the life estate would terminate was uncertain, for the first devisee might attain the age of 21 and have children, in which event there would be no remainder, for both conditions would not happen. And, as we have said, a remainder must depend upon a contingency which must surely happen. Nor do the other cases mention the case of Shaw v. Hoard. It may well be that its facts having been once distinguished, the court in the later cases thought it unnecessary to repeat the distinction and decided the cases upon its view of the special facts. However that be, that court has always adhered to the general rule that the intention of the testator is to be gathered from all parts of the will, as well from what is expressed as from what is fairly implied. Referring to the other cases which are cited to establish that Shaw v. Hoard has been overruled, we observe that in Piatt v. Sinton, 37 Ohio St. 353, the testator devised "all my prop

*

and in case

erty of every description" to Lucinda Piatt she should die without any legitimate heirs of her body, then the same property to go over to others named. The court construed "all my property" as "all my estate," and the heirs of the body of Lucinda Piatt were strangers to the blood of the testator. In Collins v. Collins the testator devised a life estate to his wife with remainder to his two sons and their heirs, but that in the case of the death of either leaving no children, then to the survivor. But in case of the death of both of the sons leaving no children, then to the testator's heirs. In that case the estate was granted by "clear and decisive words," and the rule laid down in Thornhill v. Hull, 2 Clark & Fin. 22, was applied, which is that:

"It is a rule of the courts in construing written instruments that where an estate is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest cannot be taken away or cut down by raising a doubt upon the extent and meaning and application of a subsequent clause, not by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate."

Moreover, an estate in remainder cannot rest upon an estate in remainder when the latter is given to one and his heirs, for the whole estate is exhausted. In Durfee v. MacNeil, 58 Ohio St. 238, 50 N. E. 721, the testator "devised all my estate, after defraying expenses, etc., to three persons equally, one of whom was then unborn, and to their heirs forever, and should the child not be born alive, or should either die without heirs, each one's share should go to the survivor," and in the event that the testator should be without heirs of his body, the legacies to his children should go to his wife. No question arose of the kind here involved. The facts in the case had little or no analogy to the present. There was a clear and decisive gift of an estate in fee simple, and the contingency was that either of the children should die without heirs capable of inheriting. The devise over was held to be an executory device. Sometimes it is stated by the courts (we are not now referring specially to the Ohio courts) in terms that the implication must be a "necessary" implication, but by this is meant not absolutely necessary, but that it is reasonably necessary in order to carry out the intention of the testator. Inasmuch as the case of Shaw v. Hoard has never been expressly overruled and its doctrine was in a later case confirmed, even if it should be held that the rule of construction is not settled, this court would decide the question upon its own understanding of the law applicable to it.

Much reliance is placed by counsel for defendant upon the case of Abbott v. Essex Company, 18 How. 202, 15 L. Ed. 352, which they claim "is parallel with and conclusive of this case." But this is a misconception. In that case the testator had given to his two sons John and Jacob "all my estate," to use his own words, in a certain described part of his property real and personal, and then declared that if either of his said sons should die without any lawful heirs of his own, it should go to the survivor and his heirs. And he charged the payment of certain debts and a legacy for the main