Counsel for the defendant in error cited the case of Loring v. Arnold, 8 Atlantic Rep. 335, Supreme Court of Rhode Island, the facts of which case, we think, are exactly the same as in the case now under consideration. In that case, it appears that Thomas Whipple died in 1843, leaving a will by which he devised certain real estate to his son James, " for and during his natural life, and at his decease, if he should leave any lawful child or children, then to them, their heirs and assigns forever; but if he should die without leaving any lawful child or children, then my will is that the same shall descend and be divided equally among his brother T., his sisters G., M., S., A., and J. A. B., to them, their heirs and assigns forever." J. A. B. died in Illinois, in 1881, leaving by will all her estate in Rhode Island to C. E. B. James died in 1885, leaving no wife or children. It was held that J. A. B. had a contingent remainder; and that although this contingency was not determined until after the death of J. A. B , yet the person who was to take being certain, the interest was descendible and devisable. So also in 2 Leading Cases in the American Law of Real Property, 374; Buzby's Appeal, 61 Pa. 111; Chess's Appeal, 87 Pa. 362; Fearne on Rem. 7th ed. 364-5; 4 Kent, 264; 2 Washb. Real Prop. 522.
The case of Jackson v. Waldron, 13 Wendell, 178, relied on so strongly by the plaintiff in error, was overruled in the case of Miller et ux. v. Emmons et al., 19 N. Y. 384. The decision in the case of Morehourse v. Wainhouse, decided in 1767 and reported in 1 Black-stone's Reports, also relied on by the plaintiff in error, was put upon the peculiar circumstances of that case, and the facts of that case are different from the facts in this.
c. Certain special cases.1
(it.) Remainder to a Class.
5 Pennsylvania State, 503. - 1847.
In error from the Common Pleas of Lebanon. Case stated. In 1793, Noll made his will, wherein he devised to his wife for life, remainder to his daughter, Elizabeth, for life. " Item, that when my said daughter depart this her natural life, the children which are come or born of her body shall hold and possess my said land or plantation. Item, I do give and bequeath my land and plantation, (at the time of my said daughter her decease,) to the children which are come and born of and from her body, together with the deeds, draughts, and all other writings thereunto belonging to them (the said plantation) and their heirs and assigns forever."
Testator died in 1794, when his daughter Elizabeth had two children, one of whom was Jacob Ditzler. After the death of testator she had four other children. In 1827, Jacob conveyed all his estate to Batdorff, the ancestor of the plaintiffs below, and died in 1836, his mother surviving; she died in 1841, leaving five children.
The court gave judgment for the plaintiffs for one-sixth of the land, and the defendants sued out this writ of error.
Bell, J. - The question presented by this record is, whether the children of Elizabeth Ditzler took a vested remainder under the will of their grandfather, the testator, or whether, as the defendant avers, it was contingent as to each of them, dependent upon their respectively surviving their mother. If the limitation over vested in the children on the death of the testator, it is conceded the deed from Jacob Ditzler to John Batdorff passed a fee in one-sixth part of the land devised, and, consequently, the judgment rendered by the court below is correct.
1It is always a question of construction whether a condition is precedent or subsequent, and so whether the remainder is contingent, or is vested subject to being defeated. The law favors vesting even though defeasibly. The cases under this head illustrate this tendency. - Ed.
Looking to the almost unbroken current of decisions, commencing with Boraston's Case, 3 Rep. 19, which settles the rule of construction that must govern here, it was hardly to have been expected we would be called on, at this late day, to reaffirm principles that have long ago passed into rules of property. One of these, clearly deducible from all the cases, is stated by Mr. Powell in his admirable Treatise on Devises, vol. 2, p. 215, to be, that when land is given to one person for life, or for any other estate upon which a remainder may be dependent, and after the determination of that estate it is devised over, whether to persons nominatim, or to a class of persons, it will vest in the objects to whom the description applies at the death of the testator. But in devises to children, where the question has been most frequently agitated - at what period are the objects who are to take to be ascertained? - the rule is different. When there is an immediate gift to children, those only living at the testator's death will take; but it is now settled, that where a particular estate or interest is carved out, with a gift over to the children of the person taking that interest, or of any other person, the limitation will embrace not only the objects living at the death of the testator, but all who shall subsequently come into existence before the period of distribution. Such a remainder vests in the objects to whom the description applies at the death of the testator, subject to open and let in others answering the description as they are born successively.1 As to the latter, the remainder is contingent until they are in esse, but then it immediately vests, and from thenceforth is attended by all the properties incidental to vested estates. Fearne on Cont. Rem. 242; 2 Powell on Dev. 303, and cases there cited. Our own cases are in accordance with this doctrine, as may be seen by consulting Wager v. Wager, 1 Serg. & Rawle, 374, which I select as most decisive, from the fact that it was an assurance by deed, but decided on the intention of the grantor. There the conveyance was to P. and H., his wife, for their joint lives, and the life of the survivor, with remainder to the children of H. lawfully begotten, in fee, immediately after the decease of the survivor. It was held, the children in being at the death of the testator took vested remainders liable to open for the admission of those subsequently born.