
    ELIZABETH K. BOOTH and C. W. BOOTH, her husband, v. VITO N. BAKER and ELIZA K. BAKER.
    QUESTIONS RESERVED BY ClRCÜIT JüDGE, FlRST ClRCÜIT.
    Submitted Sept. 24, 1896.
    Decided Dec. 15, 1896.
    Judd, C.J., Frear and Whiting, JJ.
    A devise to E. of the benefits of tbe testatrix’s property during ber (E.’s) life, and that E. is not to dispose of tbe property to any one, and if E. should have a child then tbe property shall go to such child:
    Held, to be a devise to E. for life with a contingent remainder to her children.
    After the testatrix’s death E. married and had a child, who died: Held, on the birth of the child the contingent remainder became vested, and on tbe child’s death it went to the heirs, who are by the statute its father and mother, as tenants in common.”
    The second article in the will reads: “If E. should die without children or descendants, then all my property shall descend to V. N. and E. K., the younger sisters of E.”
    Held, the remainder was not to the first born child of E., and nothing in the will appears to show that the intention of the testatrix was not to include all the children of E. that might be born. The remainder is subject to open and let in 'such after born children.
    The limitation over to V. N. and E. K. was defeated by the birth of E.’s child.
    No estate in perpetuity or estate tail is created in E. by this will.
   OPINION OF THE COURT BY

JUDD, C.J.

Tbe testatrix, Malie Kabai, died on tbe 15tb August, 1894, having made a will tbe previous year by wbicb sbe devised and bequeathed all her property, real and personal, to her beloved niece, Elizabeth Kahalelaukoa Baker, as an estate descendible to her children and her descendants in a direct line, Elizabeth to receive $30 a month during; her minority and “on attaining her majority to have all the benefits of the land during her lifetime, but she is not to dispose of any of the real or personal property to any one, and if she should have a child during her lifetime then all my property, real and personal, shall go to such child.”

“If Elizabeth should die without children or descendants,, then all my property shall descend to Vito N. Baker and Eliza K. Baker*, the younger sisters of the said Elizabeth.” Some specific bequests'and the nomination of an executor follow.

Elizabeth married O. W. Booth on the 31st December, 1894, and a child was born to them on the 14th October, 1895, which lived but one day and deceased. On a bill for a construction of the will, Oircuit Judge Perry of the Eirst Circuit Court, reserved the following questions of law:

“1. What estate, legal or equitable, has Elizabeth K. Booth,. nee Baker, in the property, real and personal, devised and bequeathed under the will of Malie Kahai, the said Elizabeth K. Booth having attained majority, married and had issue of the said marriage now deceased?

2. What estate, legal or equitable, vested or contingent,, have the defendants, or either of them, in the said property under the said circumstances?

3. Was an estate in perpetuity created in said real estate by the will of Malie Kahai, and if so was its effect to vest the estate absolutely in Elizabeth K. Booth?

4. If Elizabeth K. Booth has an estate tail in said real property can she bar her entail by a proper deed made for that purpose?

5. Under clause second of Malie Kahai’s will can any title' in the real estate vest in any child or descendants of Elizabeth. K. Booth until the decease of the said Elizabeth K. Booth?”

Our construction of the will is as follows:

Bearing in mind that the intention of the testatrix must govern (Thurston v. Allen, 8 Haw. 401), we find -that an estate for life in the real and personal estate was created in Elizabeth. The language used is inartificial, but the expression that Elizabeth is to have “all the benefits of the land during her lifetime and is not to dispose of any of the real or' personal estate” sufficiently conveys the testatrix’s intention to create only a life estate in Elizabeth. Where would the-property go upon the termination of the life estate? The will says if Elizabeth should have a child the property, real and personal, shall go to such child. No child of Elizabeth was in esse at the time of the death of the testatrix. The unborn child or children of Elizabeth have then a contingent remainder in fee in the estate. 2 Wash. R. P. p. 541 (4th Ed.) But the contingent remainder became a vested one in the child as soon as it was born. The vested remainder here is one of inheritance and on the death of the child it passed to its heirs who are by our statute of descent, its father and mother (the plaintiffs) as tenants in common.

But the will does not limit the remainder to the first born child. In the second article of the will, the limitation over to the defendants is only to take effect at the death of the life tenant without “children or descendants.” This contemplates that the remainder is to be in such children as might thereafter be born to Elizabeth.

The birth of Elizabeth’s child defeated the limitation over to the sisters of Elizabeth, defendants. But there may be other children born of Elizabeth. There is nothing in the will to show that the testatrix did not mean to include all the children of Elizabeth. Doe v. Perryn, 3 T. R. 484, is in point. In this case the will in effect left the estate to Dorothy for life and then to her children and heirs forever, with limitations over, Dorothy had no child at the death of the devisor and her children were bom thereafter. Ashhurst, J., said, p. 493, “Wherever a fee is created by positive words in a will, it can only be defeated by subsequent words equally plain or by necessary implications. Tbe operation of this will is that the limitation to Dorothy’s children was contingent till they were born; but it became vested on the birth of the first child, subject, however, to be diminished in quantity as other children of Dorothy ■should be born. And on the birth of the first child, the subsequent limitations were defeated. In Right v. Creber, 5 B. & C. 866, the estate was devised to the testator’s daughter Joan for life and from and after her death to the heirs of the body of Joan, share and share alike, their heirs and assigns forever. Joan had one child, Richard, at the death of the testator, but had eleven more thereafter. The court held that in this will “heirs of the body” would mean “children” and would comprehend grandchildren, and that Richard took a vested remainder, subject to open and let in the children subsequently bom, and the remainder was not limited to those who were living at the determination of the life estate of Joan. See also Doe v. Considine, 6 Wall. 477; Carver v. Jackson, 4 Pet. 90; Adams v. Ross, 30 N. J. L. 513.

The estate of Elizabeth K. Booth in the property is one for life, and the remainder is in her and her husband as tenants in common, subject to open to let in other children of Elizabeth that may be born hereafter.

Our answer to the second question is that the defendants have no interest in the property, for the birth of Elizabeth’s child defeated the limitation to them.

The third and fourth questions we answer together. No estate in perpetuity is created in Elizabeth in the property by the will of Malie Kahai and Elizabeth does not have an estate tail in the property.

The fifth question is answered by- our reply to the first.

We wish to observe that there is no authority, statutory or otherwise, for the reservation of questions to this court by a Circuit Judge sitting in equity at chambers. The proper course would be to obtain a decree from tbe judge and appeal. But as tbis power of reservation seems to bave been assumed by tbe parties to exist we bave not tbougbt it advisable to dismiss tbe case on that ground but bave considered tbe question involved. ¥e shall not consider ourselves bound by our action in tbis case as a precedent.

Magoon & Edings, and Kinney & Ballou, for plaintiffs.

G. Creighton, guardian ad litem, for minor defendants, contra.  