But this is not the whole extent to which this intent might be defeated, if the term "heirs-at-law" in this devise should be construed to be the heirs general of the testator at the time of his decease. It would then be a vested interest in them; if any of his children should die, leaving issue, this interest would descend to their children; in case of their death, it would go to their surviving parent, the son-in-law, or daughter-in-law, of the testator. To illustrate by an event which is understood to have already occurred: One of the testator's sons has deceased since the probate of the will, leaving an only daughter, who, as her father's representative, takes his right to this contingent interest, if it was vested at the time of the testator's death. If the daughter should die, this interest would go to her mother, a daughter-in-law of the testator; so that in the event of the death of the plaintiffs, or either of them, that daughter-in-law would take, as heir of her own daughter, a portion of the estates devised to these plaintiffs. The result of such an interpretation of this gift over to the heirs, would therefore be, in the supposed contingency, to give a portion of the testator's estate, not only to his son-in-law, the father of the plaintiffs, but also to a daughter-in-law, the wife of one of his sons, contrary to his distinctly declared intention; and the same result would follow in the like contingency in regard to the estates, devised in similar terms to the testator's other children.
This view of the intent of the testator in the gift over to his heirs-at-law, is greatly strengthened by the use of the same words with a similar meaning in a preceding part of the same clause in the will; by which he directs the trustees, in the event of the death of his daughter, without issue, to convey the estate, which had been held by them in trust for her use, to his heirs-at-law. Here he clearly intended that the conveyance should be made to those who should be his heirs, at the time the contingency should occur, and not to those who were his heirs at the time of his death. If the latter construction were adopted, it would follow that his daughter, being one of his heirs at his decease, had an equitable estate for life, and also a vested right to a conveyance in fee of the same estate, upon her own decease - an interpretation manifestly absurd; as it would present the anomaly of the creation of a trust estate for life for the separate use of the daughter, carefully guarded, so as to be beyond her own control and that of her husband, accompanied with a vested right to a conveyance of the whole estate in fee, subject to her absolute disposal. The language of the will and the intent of the testator are coincident. The trustees were to convey in esse when the contingency should arise. The conveyance was to be made to persons then answering the description of the testator's heirs-at-law, and not to those who were such at his decease, one of whom must necessarily have died before the contingency could arise. This interpretation of the term "heirs-at-law," as used by the testator in directing a conveyance by the trustees, is too clear to admit of doubt. It is reasonable to infer that the same words were used with like meaning in the very next clause of the will, in disposing of the same estates in the event of the occurrence of another contingency.
Without enlarging further upon this part of the case, the considerations already suggested render it certain that the intent of the testator was to devise the estates to those who should be his heirs-at-law, at the time the gift over should take effect. They cannot claim by descent, because the estate on the happening of the prescribed contingency would not vest in those who were the heirs of the testator at the time of his decease, and those who would be entitled could not take in the same proportions, as they would have done, if the devise over had been omitted. They must take, if at all, under the will as purchasers by force of the executory devise.
The only remaining question is, whether the intent of the testator can be carried out consistently with the rules of law; that is, whether the gift over as an executory devise will certainly take effect within the limits which are essential to its validity. The principles applicable to estates of this nature have been fully considered and explained in a recent case. Brattle Square Church v. Grants 3 Gray, 142. It was there held, that a limitation by way of executory devise, which may possibly not take effect within the term of a life or lives in being at the death of the testator, and twenty-one years afterwards, (adding, in case of gestation, about nine months,) is void for remoteness. In the present case, the limitation over was not to take effect until after the death of the testator's daughter, and after the death of her children, including those born after the death of the testator, or any of them. It was not a limitation upon a life in being, with twenty-one years superadded, but upon a life in being, and after its termination upon a life or lives not in being at the time of the testator's death, and which might continue for fifty years or more after the life of the first taker. Indeed the gift over could not take effect within the prescribed period as to the share of any child born after the testator's death, unless it died within twenty-one years after its mother. Standing by itself, therefore, as a devise to the mother, and, after her death, to her children, born or unborn at the testator's death, and, on their decease, to those who should be then the heirs of the testator, it was clearly too remote, because it was a limitation which possibly might not take effect until after the termination of a life in being at the testator's death, to wit, the life of the testator's daughter, and more than twenty-one years afterwards; that is, until the death of her after-born children, which might not occur within the allotted period.