
    Hannah M. Bates et al. v. John G. Zinsmeister et al.
    G. devised to his daughter H. certain real estate for her life, remainder to ■ her children, and remainder over to her brothers and sisters in the event she should die without issue surviving her, with like remainder over if she should die leaving issue, and such issue should die under the age of twenty-one years without issue. H. still survives at the age of sixty,. and has children living, each of whom is over twenty-one years of age, but none of them has issue. B'eld:
    
    1. The effect of the devise over to the brothers and sisters of H. in the event of her death without surviving issue, was to'make the devise to the children of H. contingent upon her death leaving issue surviving her.
    2. The subsequent devise over, in the event that H. should die leaving issue and such issue should die under the age of twenty-one years without, issue, did not discharge the devise to the children of H. from the contingency of her death without surviving issue. ,
    3. A deed of conveyance by H. and her children, would not pass an absolute estate in fee simple to the grantee.
    Motion for leave to file a petition in error to reverse the judgment of the Superior Court' of Cincinnati.
    The original action was brought by plaintiffs in error to compel the defendant in error to specifically perform his written contract for the purchase of certain real estate. The defendant resisted performance on the ground that the plaintiffs did not hold, and could not convey, a good title in fee-simple to the premises, which, by their contract, they had undertaken to e'onvey to him.
    The record shows that the plaintiffs’ title is derived through the last will and testament of one Philip Grandin; and it is conceded that the plaintiff, Hannah M. Bates, a ■daughter of the testator, and designated in the will by the name “ Hannah,” is seized of a life estate in the premises; but the question made in the case is,whether the other plaintiffs, who are the children of Hannah, have an absolute and indefeasible estate in remainder.
    The following statement of facts is submitted upon agreement of parties :
    Philip Grandin died testate, in Cincinnati, in 1858, possessed of a large estate, leaving two sons—John P. and "William S.—and four daughters, all married—Mary E. Orr, Hannah M. Bates (the present plaintiff), Lucy Ann Goodman, and Susan A. Woodward. All of these children of the testator are now living, and are parties to this action.
    Mrs. Bates has had three children, who are all now living, and all over the age of twenty-one. They are the other plaintiffs in this cause, and none of them have issue. Mrs. Bates is upward of sixty years of age, and it is admitted it is physically impossible that she should again have issue.
    The will, upon the language of which, and the construction to be given it, hinges the present controversy, was executed by Mr. Grandin in 1850. Subsequently, in 1856, he added a codicil, naming an additional executor, but not changing in any way the language of devise originally used. The will is of considerable length, and a printed copy was filed and made a part of the record in this cause. Pursuant to the terms of this will, the executors, in August, 1859, conveyed by deed to Mrs. Bates, among other pieces •of real estate, the property described in the petition and in question in this action; and this deed is also made a part of the record.
    It is agreed that the title is clear and unincumbered, and the only objection made by the defendant is as to the estate these present plaintiffs hold under Mr. Grandin’s devise to them. If this court hold that the deed executed by the present plaintiff can convey the fee-simple, the decree will be, it is admitted, one for the specific performance of the agreement made by the parties.
    The clauses of the will, upon which the question depends, are found within the following provisions:
    “ My executor shall convey, by proper writing, to each of my three daughters, Hannah, Lucy Ann, and Susan Adeline (they being of full age or married), the portion of real estate that may be assigned and set apart to them severally, so that each of them may have secured to her own use, and subject to her own control, the share of my estate that may be allotted to her, to be used and improved and enjoyed by them respectively during their lives, and, on their death or the death of each of them, the share of each shall go to the child or children of each ; and in case of the death of either of my daughters without surviving issue, the share of such daughter shall go to the surviving brothers and sisters in equal parts, to be held by each under the same limitations as the residue of my estate is held by them respectively. . . . As a considerable portion of my real estate is unimproved, ... I hereby authorize either of my three daughters above named, jointly with their husbands, if they have any, to lease their unimproved lots for short periods, not exceeding ten years, . . . ; and should either of my children die leaving issue,-before they receive their portion of my estate, such issue shall receive from my estate the same amount and share of personal and real estate as would have been due to the parent, had the parent have lived to receive his or her share of my estate, as is provided for in this will, to be held under the same rules and limitations as is provided for the residue of the estate; and should any one or more of my children die leaving issue, and should such issue die under the age of twenty-one years without issue, then I direct hereby that the property that, by the terms of this will, would have passed to such child or such children, or their issue, shall pass in fee-simple to such of my children as may then survive, and to the heirs of such as may then have deceased, in the same way as, by this will, it is provided in cases when such child or children should die without issue.”
    The real estate in question having been allotted to Hannah, the executors made and delivered to her their deed for the premises, containing the following habendum et tenendum :
    
    
      “ To have and to hold the same to the said Hannah 'M. Bates for and during her natural life, with full power to grant leases upon the unimproved lots, for periods not exceeding ten yeai’s, and, upon her decease, to the children of her body begotten, subject to the conditions and restrictions of the last will of said Philip Grandin contained, to which reference is hereby made for more certainty, their heirs and assigns forever.”
    Upon this state of facts, the court below refused to decree specific performance, and dismissed the action.
    
      Goodman Storer, for the motion,
    claimed that the intention of the will is to vest an indefeasible fee-simple in Mrs. Bates’ children at the day they arrived at twenty-one ; that the possibility of after-born issue can not raise a question,, as the law presumes conclusively against such a contingency, under the circumstances and agreed facts and in support of such a construction of the will cited. Framlingham v. Brand, 3 Atk. 390; Fveritt’s Lessee v. Cook, 7 East, 269 ; Gray v. Pearson, 6 IT. of L. 60; 12 East, 288; Jackson v. Blanshon, 6 John. 54; Carpenter v. Heard, 14 Pick. 449 ; 1 Redlield on Wills, 485, et seq.; Say ward v. Sayward,. 7 Greenl. 210 ; Harkness v. Corning, 24 Ohio St. 416; Decker’s Fx’rs v. Decker’s Fx’rs, 3 Ohio, 157; William’s Lessee v. Veach, 17 lb. 171; Starling’s Fx’rs v. Price, 16 Ohio St. 29 ; Fdward v. Earner’s Fx’rs, 17. Ib.' 597; 2 lb. 380 ; 19' lb. 490.
    
      J. G. $ H. Douglass, contra.
   McIlvaine, J.

It is, by the terms of the will of PhillipGrandin, and not by the deed from, his executors to their-mother, that the estate of the children of Mrs. Bates in the lands in question must be determined.

The provisions of the will which bear upon the subject are separated by other provisions which do not affect their construction, and, when brought into juxtaposition, read as follows:

“ My executor shall convey by proper writing to each of my three daughters, Hannah, Lucy Ann, and Susan Adeline (they being of full age or married), the portion of real-estate that may be assigned and set apart to them severally, so that each of them may have secured to her own use and subject to her own control the share of my estate that may be allotted to her, to be used and improved and enjoyed by them respectively, during their lives, and on their death, or the death of each of them, the share of each shall go to the child or children of each, and in case of the death of either of my daughters without surviving issue, the share of such daughter shall go to the surviving brothers and sisters in equal parts, to be held by each under the same limitations as the residue of my estate is held by them respectively; ... . and should any one or more of my children die leaving issue, and should such issue die under the age of twenty-one years without issue, then I direct hereby that the property, that by the terms of this will would have passed to such child or such children or their issue, shall pass in fee-simple to such of my children as may then survive, and to- the heirs of such as may then have deceased, in the same way as by this will it is provided in cases when such child or children should die without issue.”

By the former clauses contained in the above extract from the will, estates in this property were devised as follows :

1. An estate for her life to Mrs. Bates.

2. An estate in remainder in fee to the children of Mrs. Bates.

3. Remainder in fee over to the surviving brothers and sisters of Mrs. Bates in the event that she should die without leaving issue surviving her.

It is perfectly clear, from the devise of the remainder over to the surviving brothers and sisters of Mrs. Bates in the event of her death without surviving issue, that the remainder to her children was contingent upon the event that the. issue of Mrs. Bates should survive her.

By the latter clauses in the will above quoted, a condition of defeasance also is attached to the estate devised to the children of Mrs. Bates, namely, that in case Mrs. Bates should die leaving issue, the estate so devised should cease and determine, in the event that such issue should die under the age of twenty-one years without issue.

The conditions that are thus imposed upon the title of the children of Mrs. Bates are not at all inconsistent, nor ■do we think that the testator by attaching the latter condition of defeasance, intended to defeat the remainder over to the brothers and sisters of Mrs. Bates in the event that she should die without leaving surviving issue.

We need not, therefore, inquire whether it be possible, under the agreed statement of facts, that Mrs. Bates should bear other children, or whether her issue that may survive her may die under the age of twenty-one years without issue.” The fact that Mrs. Bates is yet living, and may survive all her issue, is sufficient to show that the fee-simple estate of her children is contingent and not absolute.

Motion overruled.

■Welch, C. J., White, Rex, and Gilmore, JJ., concurred.  