first takers a vested estate from the death of the testator, subject to be divested by their death before the age of twentyone; 143 and also that an estate in remainder, depending upon a prior life-estate, vested at the death of the testator in such a manner as not to be liable to be divested upon the decease of those entitled in remainder, during the continuance of the lifeestate, but would pass to the heirs or the next of kin of such persons.144 64. It has been held in Florida, Georgia, and some other states, that the postponing the time of distribution of an estate, until the testator's widow shall marry again, or his children come of age, or until the youngest child shall come of age, does not hinder the vesting of a present and transmissible interest.145 13 Raney v. Heath, 2 P. & H. 206. It was here decided that the first takers could not be required to give security for the preservation of the property, for the benefit of those entitled in remainder, unless there was evidence of danger of the loss of the property. 144 Cowan v. Epes, 2 P. & H. 520. So a devise to A, remainder to his children, if any, if not, remainder to B. After the death of the testator, A marries and has children. It was held that the estate in remainder, vested in such children as they were born, opening to let in each successive child as it came into existence, so that upon the birth of the first child the remainder to B was defeated. Cooper v. Hepburn, 15 Gratt. 551. 145 Young v. McKinnie, 5 Fla. R. 542; Everett v. Mount, 22 Ga. R. 323. And a devise to one in trust for the benefit of another, "should he live to be twenty-one years of age," but otherwise, then over, confers a vested interest immediately upon the testator's death, subject to be divested upon the happening of the contingency. Bowman v. Long, 23 Ga. R. 242. A bequest of all the testator's personal property to his wife and children, share and share alike, "each child to draw their share as they come of lawful age or marry,” creates a vested legacy in the children. Cox v. McKinney, 32 Ala. R. 461. So also on a bequest to the widow during life or widowhood, and after the termination of her right all the remainder of the property to be divided between two of the testator's children, they take vested interests from the death of the testator. Thrasher v. Ingram, 32 Ala. R. 645. See also, to the point stated in the text, High v. Worley, 32 Ala. R. 709. A remainder to children of the tenant of the particular estate opens to let in after-born children until the period of distribution. Nichols v. Denny, 37 Miss. R. 59. 65. But in Alabama it was held, under very similar circumstances, that the estate was contingent, until the time fixed for distribution, and that only those legatees who where living at that time were entitled to a share. 146 But this seems to be at variance with the general course of decision upon this question.145 And it was so held in a case involving similar principles in the state of Tennessee.147 So also in Delaware.148 66. Where the estate in remainder is dependent upon the lifeestate of the testator's widow, who waived the provisions of the will and took her share under the statute, it was held that estates in remainder vested immediately upon the determination of the estate or interest of the widow.149 146 Travis v. Morrison, 28 Ala. R. 494. 149 Holderby v. Walker, 3 Jones, Eq. 46. The courts in this state hold the general rule, that estates are to be construed as vested rather than contingent, whenever the expressions in the will are ambiguous or the intention doubtful. Devane v. Larkins, 3 Jones, Eq. 377, where the rule is applied to a case, where the distribution of the estate is deferred, until the widow shall marry again, or the children severally come of age, when each is entitled to his or her share. But in a bequest to one for life, and then to the children of my daughters who are then living, the estate in remainder is contingent until the death of the tenant for life, and then vests in the children living at that time. Freeman v. Okey, 3 Jones, Eq. 473. In a conditional limitation of an estate, if the person to take is certain, his representative is entitled to the interest limited to him, although he die before the happening of the event on which the estate in remainder was to vest in possession. Hall v. Robinson, 3 Jones, Eq. 348. In a bequest to a class, if one die before the testator it is the same as if such one had never existed. Washington v. Emery, 4 Jones, Eq. 32. Upon a bequest of property, the income to be applied to the maintenance of three of testator's children, until the youngest shall come of age, then to be converted into money and divided among all the testator's children, this creates vested interests in all the children from the death of the testator; and upon the death of one or more of them, before the youngest comes of age, the interest of such child or children devolved upon the next of kin. Williams v. Smith, 4 Jones, Eq. 254. See post, § 66, pl. 18, 67. It was held in Tennessee, that where the testator left all his real and personal estate to his wife, remainder to his eleven. children, and by a codicil vested the shares of seven of the children in three of the sons, in trust to be managed by them for the benefit of such children, after the death of the widow; the codicil also providing that if either of the children died without any heirs of the body, his share should return to the estate, and be divided among those still living; that the codicil gave a present vested interest, with executory devise over on the happening of the contingency, and that upon the death of one of the children during the continuance of the life-estate, leaving no issue, his share would follow the common rule of descent, and go to his personal representative, and be subject to the payment of his debts after the falling in of the life-estate.150 68. In Connecticut it was held, that a devise to the testator's wife during life, and after her death to his niece, to her and her heirs during her natural life, and after her death, that her son should be the sole heir of such estate, created in the last taker a vested remainder from the death of the testator, and if such devisee in remainder died after the decease of the testator and before that of the intermediate devisees, the remainder would go to his lawful heirs.151 69. It has been held in Ohio,152 that a future contingent interest in the nature of a contingent remainder or executory devise, is such an existing interest in the land as is transmissible by devise or deed, and of course by descent. 150 Petty v. Moore, 5 Sneed, 126. 151 Throop v. Williams, 2 Conn. R. 98. 12 Thompson's Lessee v. Hoop, 6 Ohio, N. s. 480. 54 * SECTION II. EXECUTORY DEVISES AND BEQUESTS, AND THOSE IN REMAINDER. 1. An executory devise is a limitation over, which cannot operate by way of remainder. 2. If the estate can take effect as a remainder it shall. 3. An estate in remainder must be upheld by another estate less than a fee. 4. Such estate must continue until the vesting of that in remainder. 5. Remainder cannot be upheld by a chattel interest; or take effect in futuro. 6. Where the life-estate terminates on condition, the estate over becomes an executory devise. 7. And where the intermediate estate is a conditional fee, that over is an executory devise. 8. Where the executory devise fails by lapse or remoteness, the first taker holds absolutely. 9. The case of Jackson v. Noble discussed at length. n. 16. Explanation of the grounds of the decision in the different courts. 10. The first taker holds the entire estate, where such appears to be the intent of testator. 11. Bequest to widow for life, and then to children, creates vested interest in children. 12. And where the estate over is to go to issue, if there be no issue, it is not de feated. 13. And where a bequest for daughters is held in trust for their issue, this will not affect the estate of those who die without issue. 14. Lord Cottenham's illustration of the point in Lassence v. Tierney. 15. Where the words of the will are ambiguous, may be explained by context. 16. So the gift remains absolute upon failure to exercise a power of appointment. 17. Executory devises not defeated by forfeiture or failure of intermediate estate. 18. A change in the intervening estates converts a remainder into an executory devise. 19. And an estate may change from an executory devise to a remainder. 20. Estate may be so framed as to take effect as one or the other in different events. 21. An executory devise not defeated by failure of estate out of which it arises. 22. Where the executory devise and contingent remainder vest in the same person, they do not merge. 23. An estate in fee defeasible by a possible estate over is subject to curtesy and dower. 24. Personalty may go to successive owners by executory devise, but not by re mainder. 25. Equity will require the tenant for life to furnish inventory; will decree surrender. 26. The rights of tenants for life and those entitled in remainder further explained. 27. The law against perpetuities applies to personal estates in succession. 28. Successive estates cannot exist in chattels of a perishable character, unless in residue. 29. The law of executory devises the same as at common law, in the American states. 30. So also in regard to remoteness, and the effect of estate over being void. 31. It is clear that an executory devise, after indefinite failure of issue, is void. 32. An executory devise may take effect in futuro, without an intermediate estate. 33. An executory devise over cannot be limited upon absolute devise to the first taker. 34. But if the first devise lapses the devise over will take effect. § 65. 1. AN executory devise is a limitation by will of a future estate or interest in land, which cannot, consistently with the rules of law, take effect as a remainder.1 2. It is a settled rule of law, that if a devise can take effect, as an estate in remainder, it shall be so regarded.2 3. It being a universal rule of law that an estate in remainder by devise cannot take effect in futuro, except there be an estate of freehold in existence at the death of the testator less than a fee by which the estate in remainder may be upheld; whenever it happens that no such estate is in existence at that time, the estate in remainder becomes void.3 4. Hence where the devise of an estate to take effect in futuro is not upheld by some subsisting estate from the decease of the testator until the time the future estate takes effect, it creates an executory devise, since it cannot operate as a remainder, unless 1 1 Jarman, (ed. 1861,) 819. 2 Purefoy v. Rogers, 2 Lev. 39; s. c. 2 Saund. 380; Goodwright v. Cornish, 4 Mod. 256, 258, where it is said, arguendo, and so held by the court, "And it is, a known rule of law that it shall not be construed by way of executory devise, if it will admit of any other construction." Doe v. Provoost, 4 Johns. 61. '1 Jarman, 819; Moor v. Parker, 1 Ld. Ray. 37; s. c. 4 Mod. 316; s. c. Skin. 558; Doe v. Earl of Scarborough, 3 Ad. & Ell. 2, 897; Wells v. Ritter, |