But it may be suggested, that as the gift over was limited on the death of a child or children in the lifetime of the father, without issue, and as the father was living at the time of the testator's death, it is in fact a limitation on a life in being, and does not violate the rule of law. It is true that, as events have transpired since the death of the testator - to wit, by the death of his daugher, leaving a husband and children alive - the devise to the heirs would vest, if at all, before the expiration of the prescribed period. But the point of time at which the will is to be construed is at the testator's death. It is then that its language speaks. A de vise must be then legal, or it must fail. It is not sufficient that on the happening of certain events the gift over may take effect, and, if originally limited to those events, would have been valid; but it must appear to be legal and valid in all the events which, at the time when the will takes effect, may by possibility occur. A limitation by way of executory devise to be valid must, ex necessitate, take effect within the prescribed period. If the event upon which the estate is limited, may, by possibility, not occur within that time, it is too remote. Brattle Square Church v. Grant, 3 Gray, 153, and cases there cited.

If, in the present case, the devise had been to the daughter for life, and on her death to her children in fee, but if the children or either of them should die without issue, in the lifetime of any husband of the daughter, living at the testator's death, then to the heirs of the testator, it would not have been liable to the objection of remoteness; because it would be limited over on an event which must occur within the allowed period, to wit, a life in being at the testator's death. But although, at the time of the death of the testator, his daughter had a husband living, his subsequent decease was neither impossible nor improbable. In the event of his death, she might have contracted a second marriage and had issue by a husband who was not born at the time of the death of the testator. Such an event was certainly improbable, but it was not impossible, and so the devise over might by possibility not have taken effect during a life in being at the testator's death, and more than twenty-one years thereafter. It was therefore void for remoteness.

Nor does it make any difference in the operation of the rule against perpetuities upon the devise in question, that the gift over might take effect, as being within the proper limits in relation to a portion of the estate devised, although void as to another portion, as being too remote. For instance: It might be contended that as to the portions of the estate whch would go to the grandchildren of the testator, born during his life, or during the lifetime of his son-in-law living at his decease, the gift over was not open to objection on the ground of remoteness, although it might be as to the shares of other grandchildren, the issue of a second marriage of the daughter of the testator, and born after his death. But the difficulty is, that the shares of the grandchildren were contingent till the death of their mother. The trustees were to convey to the children then living. Those who had previously deceased took no vested interest until the event happened. The fee remained in the trustees, who were to convey it to those of her children who survived her. Under this devise, therefore, it was possible that the entire estate would go to children of the daughter, born after the testator's death, and by a husband not then living. Such might be the result, if the children of the first marriage should die before their mother, and in that event the whole estate would be limited over on a contingency too remote. As the validity of the gift over must be determined on the principle, that it cannot by possibility take effect beyond the period allowed by law, it follows that this devise must fail, because the Limitation to the heirs is made to depend on an event which may not happen until after that period has expired. The possibility, however remote, that the limitation may not take effect within the time fixed by the rule, is fatal to its validity. Lewis on Perp. 170; Newman v. Newman, 10 Sim. 51; Dodd v. Wakc, 8 Sim. 615. See, also, Challis v. Doe, 18 Ad. & El. N. R. 231, 247.

The entire devise over to the heirs must, therefore, fail as being too remote; and as the rule applies to every executory limitation by will, whether of real or personal estate (Lewis on Perp. 169), the whole of the property comprehended in the gift to the heirs of the testator, must vest in the plaintiffs, free from the divesting limitation. The fee to be conveyed, and the personal property to be transferred, by the trustees to the plaintiffs, being subject to a gift over, which is void for remoteness, remain in them absolutely, unaffected by the limitation to the heirs of the testator. Brattle Square Church v. Grant, 3 Gray, 156.

We are inclined to the opinion that the gift over, being an executory devise, is void for another reason. By the will, the testator has given to his grandchildren the power to make a will, and dispose of the estates given over to his heirs, if they shall have arrived at the age of thirty years, at the time when they are to receive the property from the trustees; that is, on the death of their mother. One of the distinguishing features of an executory devise is its indestructibility by the first taker. Here is a power of disposition expressly given to the children, which is inconsistent with the gift to the heirs. See Holmes v. Godson, 35 Eng. Law & Eq. R. 591, and cases cited. But it is unnecessary to determine this point, and we forbear to express an opinion upon it.

Decree for the plaintiffs.