Devise and Legacy. A will, after leaving to the testator's widow the use and improvement of all the testator's real estate and the income of all his personal property during her life, provided that on her death all of his real estate should go to his six children named and that all of his personal property should be distributed among them equally, and then proceeded as follows: "But if either of my said children should die, unmarried and without issue, then the share which such child would take by virtue of this my will shall go to and be divided among my surviving children in equal proportions and so if more than one of my said children should die before the decease of my said wife. Furthermore if any one of my said children should die before the decease of my said wife leaving a child or children born in lawful wedlock my will is that the share which such child would have taken if living, should go to and be holden by such child or children in the same manner and be holden by the same title that it would have been holden by, by such child if living." Held, that each of the six children of the testator took an undivided sixth of the real estate in fee in remainder, and, assuming that such remainders vested on the death of the testator, they were subject in the case of each child to be divested by the death of such child before the death of the testator's widow, that if such child so died leaving a child the share would go to such grandchild of the testator, but that the estate of such grandchild would be subject to be divested by his death before that of the testator's widow.
HAMMOND, J.
By the second clause of the will the widow took a life estate in the real estate of the testator; and by the third clause each of the children took an undivided sixth of the remainder in fee. Assuming in favor of the tenant that this interest in remainder was vested at the death of the testator, it nevertheless was liable in the case of each child to be divested by the happening of a contingency, and that contingency was the death of the child before the death of the life tenant. In case a child thus died, the estate which had been vested went (if the child was unmarried and without issue) to the testator's surviving children; but if such child left "a child or children born in lawful wedlock," then it went to the latter. But any such grandchild was to hold his share of the estate "in the same manner" and "by the same title" as it would have been held by its parent if living. This means that the estate of any such grandchild was liable to be divested by its death before the death of the life tenant.
Such seems to be the plain reading of the will; and the intention of the testator, as thus expressed, can be carried out without violating any rule of law.
It follows that upon the death of the daughter Sarah, which occurred in 1856, her interest, being one undivided sixth, in the remainder passed by the terms of the will to her child Sarah, and upon the latter's death in 1862 the interest passed under the will to the testator's children then living, one of whom, Reuben, was the father of the demandants. Upon the death of Reuben in 1895, his interest, now being one undivided fifth, became divested and passed under the terms of the will to his children, the demandants. They took, not as the heirs of their father Reuben, but under the will of their grandfather, the testator, and therefore their rights are not at all affected by their father's deed to Sherman Bowers in April, 1861, under which through mesne conveyances the tenant claims. The ruling given at the trial was correct, and the ruling requested by the tenant was rightly refused.
Judgment for the demandants for an undivided one fifth interest in the demanded premises.