
    *Richard Roe lessee of Rowland Evans, against James Davis.
    One devises “all the rest and residue of her estate to J during the term of ‘ ‘ his natural life, and if he leaves lawful issue then she gives her real estate “ unto such issue; but in case of his dying without such issue, or they dying “under 21 and without lawful.issue, then she devises all her real estate to A, “his heirs and assigns, on condition that he or they pay to the managers of “the Pennsylvania hospital 300I. in three months after the decease of J.” Adjudged that J took an estate in fee tail, which was forfeited to the state by his attainder of treason, till he and his issue should he extinct; and the remainder limited to A is a vested remainder, which may well take effect 011 the payment of the 300I.
    Ejectment for messuages and lots of ground in the city of Philadelphia, wherein a case was stated for the opinion of this court, viz.
    Sarah Parrock being seized in fee of the premises in the declaration mentioned, made her last will and testament in writing duly proved and registered, whereby (inter alia) she devised as follows:
    1 ‘ I give, devise and bequeath all the rest and residue of my ‘ ‘ estate whatever and wheresoever unto my dear and beloved “brother John Parrock, during the term of his natural life, “and if he leaves lawful issue, then I give my real estate unto “such issue; but -in case of my said brother departing this “life without such issue, or they dying under the age of ‘ ‘ twenty one years and without lawful issue, then I give, devise “and bequeath all my real estate of what kind soever unto “my esteemed friend Abel James, of the city of Philadelphia,
    ‘ ‘ merchant, his heirs and assigns, on this condition, that he 1 ‘ or they pay to the managers of the Pennsylvania Hospital “for the time being, the sum of 300I. lawful money of Pennsylvania, in three months after the decease of my said dear “brother. And I do hereby authorize the contributors of the “said hospital for the time being, to demand and recover the “same.”
    This will bore date on the 13th July 1773, and Sarah Par-rock afterwards in August following, died seized of the premises in the declaration mentioned.
    The said John Parrock the devisee, entered into the premises, and was possessed thereof.
    In 1778, John Parrock became duly attainted of high treason according to the laws of this commonwealth, and a proclamation bearing date 1st May 1778, for having adhered to the enemies of the United States <5f America in the war with Great Britain, and his estate real and personal was forfeited, agreeably to the laws of the said commonwealth.
    The agents for forfeited estates seized the premises in the. declaration mentioned, as a part of the estate of the said John Parrock forfeited to the commonwealth, and the Supreme Executive Council sold and conveyed the same by patent, under which the defendant holds.
    Abel James in his life time, to wit, the 15th day of September 1779, exhibited to the justices of the supreme court his claim of and for the premises in the declaration contained *3331 fa* Ier alia) and the said justices did thereupon decree -* a dismissal of his said claim, which decree remains in full force and unaltered. (See Dallas, 47.)
    
      On the ist January 1784, Abel James made his last will and testament in writing, and thereby devised the premises (inter alia) to John Thompson and Rebecca his wife, Chalk-ley James, Joseph James, Abel James and the testator’s widow Rebecca James and Thomas Chalkley James his sons and daughters.
    On the 29th July 1784, Abel James and Rebecca his wife, granted and conveyed by deed the premises in the declaration mentioned (inter alia) to John Field, Joseph Swift, Henry Drinker and Cadwalader Evans, in trust for certain uses therein contained.
    In October 1790, Abel James died: And in May 1791, John Parrock died, having never had any issue.
    On the 27th June 1791, John Field, Jpseph Swift, Henry Drinker and Cadwalader Evans leased the premises for 21 years (inter alia) to Rowland Evans the lessor of the plaintiff.
    On the 27th June 1791, John Thompson and Rebecca his wife, Chalkley James, Joseph James, Joseph Smith and Martha his wife, Abel James et al. leased by deed (inter alia) the premises in the declaration mentioned, to the lessor of the plaintiff for 21 years.
    On the 28th June 1791, Henry Drinker, one of the assignees of Abel James and wife, and John Thompson, one of the executors named in the will of the said Abel, paid the sum of 300I. to Mordecai Lewis, treasurer of the contributors to the Pennsylvania Hospital, the legacy left to that institution, by the last will of the said Sarah Parrock.
    The questions submitted to the decision of the court, under the preceding case, were: what estate was forfeited to the commonwealth by the attainder of the said John Parrock? and whether the plaintiff was entitled to a recovery of the premises ?
    This case was argued at the last April term by Messrs. Tilghman and Wileocks for the plaintiff, and Messrs. Sergeant and Coxe for the defendant; (Mr. Lewis for the plaintiff, and Mr. Ingersoll for the defendant, having declined speaking thereto.)
    On the part of the plaintiff it was contended, that if an estate tail in John Parrock was forfeited to the commonwealth by his attainder, then when the issue of the said John ceased, the estate of Abel James commenced. In Dallas 48, this court held, that John Parrock under his sister’s will, took an estate tail. *His issue were to take in succession, [-*304 which they could not do without a previous estate of L inheritance in their father. It has been held in the case of captain John Gordon in the House of Peers, Fost. 95, 103, that a forfeiture in high treason in cases of estates tail, operates as long as the issue in tail shall continue, but no longer. The king shall have the land as long as the estate tail continues. Hob. 334. A base fee vests in the king, determin able on the tenant in tail dying without issue. Tenant in tail with reversion to the king, there is a corruption of the blood on his attainder, his estate tail ceases on his death, and the land reverts to the king: aliter, when the reversion or remainder goes to a subject. Ib. 345, 346. Eord Sheffield v. Ratcliffe. The king has a qualified fee so long as the estate tail continues. Plowd. 557. Walsingham’s case. Cited 2 Bac. Abr. 125. The continuance of the estate tail is necessary to continue the estate held by the forfeiture. Plowd! 559. And Saunders chief baron, delivered the judgment of the court, wherein he approved of its being a base fee. Ib. 561. Tenant in tail forfeiting his land, the king has it during the estate tail, but no longer. 13 Vin. 440, pi. 10. Cites 2 Anders. 139. Corbet’s case. S. P. Jenk. Cent. 286, pi. 21. Tenant in tail attainted of treason, and the king grants the land to J. S. who bargains and sells to B, against whom a precipe is brought, who vouches J. S. and so a common recovery had, this shall not bar the remainder, because J. S. does not come in, in privity of the tail. 18 Vin. 197, pi. 3. Tenant in tail is disabled by attainder from suffering a common recovery. Pigot, 73, 74. Cites Godb. 218. Tenant in tail attainted, suffers a recovery as vouchee, and adjudged, good. 1 Keb. 398. Holland v. Eisher.
    But it may be asserted that there is a difference between the words of the statutes in England and our act of assembly of 6th March 1778. Upon a critical examination of them, no substantial difference will be found.
    By § 5, of the act of 1778, the respective estates and interests of the attainted parties are forfeited; and § 17, saves all remainders and reversions on entry of the claims in the Supreme Court in the manner therein prescribed. It may be fairly inferred, that contingent remainders are thereby saved, in case of the determination of the particular estate. The resentment of the legislature was levelled at the offending character alone. ■
    The decree of the Supreme Court on the dismissal of the claim of Abel James, can have no effect in the present action; for, by § 8, of the act of 29th March 1779, it is directed, that this act shall not debar any persons, who claim by title paramount to the attainted or convicted traitor, from suing their *3351 *acti°ns at law; and in § 9 there is an express provi-J sion, that purchasers evicted in ejectment shall be paid the value of their estates out of the treasury of the commonwealth, where the recovery is had by any persons having a lawful title thereunto at the time of the said sale, or after-wards, by remainder or reversion, within twenty years after 'the lands shall be sold, &c.
    The only difficulty remaining is, whether the remainder limited to Abel James, under the will of Sarah Parrock, was vested or contingent; for if it was a vested remainder, it will clearly take effect, notwithstanding the destruction of the particular estate. Devise of land to C, and the issue of his body living at his death, and for want of such issue to the university of Oxford; decreed that the issue took an estate tail; the issue were not to take by remainder but by descent, and as all the posterity were intended to take it, it would not be a contingent remainder but a clear estate tail. Per Henley lord keeper. Ambl. 385. Under a devise to A for life, and after his decease, to and amongst his issue, and in default of issue, then over, A takes an estate tail. 4 Term. Rep. 82, 87. An estate is vested in interest where there is a present fixed right of future enjoyment. Eearne Cont. Rem. 2.
    Eor the defendant it was said, that the decree of the Supreme Court on the claim of Abel James, respecting the lands therein contained, was final and conclusive.
    This case does not depend on the British statutes, but on our own acts of assembly made for special purposes. It is not contended that this forfeiture arose on the act passed nth February 1777, (1 St. Laws, 18) for that respects a forfeiture incurred by a conviction in a Court of Oyer and Terminer, and does not reach this case. But it arises on the act passed 6th March 1778, (1 St. Laws, 98) which directs, § 3, that persons not surrendering themselves on the day fixed by proclamation, shall undergo all such forfeitures as persons attainted of high treason ought to do; and in § 5, it is declared, that all the estates real and personal whatever of such traitors, shall be forfeited according to their respective estates and interests therein. In the close of this section, very general words are made use of: 1 ‘ or might forfeit by such attainder. ’ ’ This shews the sense of the legislature; that the estates of persons attainted of high treason under this act, should es-cheat to the state, with all their incidental rights.
    The statute of 26 H. 8, c. 13, forfeits estates tail by force of the words, “of any estate of inheritance.” 2 Haw. 453, § 22. Post. 100. This statute saves to all persons their rights, at the time of the treason committed, or at any time since. The same *is enacted in nearfy the same words by 5 r*nqfi and 6 Ed. 6, c. 11. 2 Haw. 451, § 18. Hence the de- L terminations in England. But no such words occur in our act of 6th March 1778. The king in England cannot suffer a common recovery, for conveniency, decency and order. Pigot, 74. Cites 1 Cro. 96, 97. The same rule must apply to a sovereign state, and for the same reasons. The power of the traitor to suffer a common recovery must be supposed to be forfeited, together with the estate tail. There could be no occasion for the state to suffer a recovery were it even practicable. Their patent under the great seal would produce the same effect; and in one patent issued by the Supreme Executive Council to lieutenant John Weidman, it recites the power of the state to grant a right to suffer a common recovery on a forfeited estate in tail.
    One may forfeit as much as he can grant. 13 Vin. 447, pi. 13. Cites Lit. Rep. 122, Arg. [But it is there said, in the margin, Contra, for if issue in tail in the life of his father is attainted of treason, and dies, it is no forfeiture of the estate tail; but if he levies a fine in his father’s life, it is a bar to his issue. Arg. Godb. 316. Cites 3 Co. 50. Sir George Brown’s case.] In § 13 of the act of 6th March 1778, it is declared that the buyer of any lands conveyed by virtue of this act, shall be seized thereof, free and clear from all incum-brances and claims whatsoever, ” of any person or persons whomsoever, the quit rent or chief rents only excepted, according to the contents of his conveyance. This clause evidently shews, that the legislature intended to forfeit all the claim and title which the traitor had, all he could convey, all his powers and privileges, and even his right to suffer a common recovery, The inheritance, whatever it be, of the traitor, is forfeited by his attainder. Eost. 101.
    It is clear, that John Parrock must have forfeited to the commonwealth, either an estate for life, in tail, or in fee simple, in the premises. If he was seized in fee simple, the dispute is at an end; for then indubitably, the whole went over to the state. If he was seized for life, or in tail only, and Abel James had a contingent remainder, it is gone by the destruction of the particular estate. 2 Bl. Com. 171. An attainder will forfeit a particular estate, and the king shall have the fee discharged of all the remainders. 13 Vin. 441, pi. 12. Here John Parrock was heir at law of his sister Sarah.
    The best way to settle the true construction of such words in a will as ‘ ‘ heirs of the body, ’ ’ &c. is to reduce the matter, if possible, to some certain rules. Per Ld. Mansfield. 2 Burr. 1106. The intention of the maker of the will is ever deemed the most governing rule. The defendant here con-*007-1 tends, that it was the clear unquestionable meaning -* of the testatrix, that the. children of John Parrock should take the residue of her estate absolutely, and in fee simple. A devise to one and her heirs may, in particular circumstances, make the heir take by purchase. Doe. v. Earning. 2 Burr. 1100. S. C. 1 Bl. Rep. 265.
    If the children of John Parrock would have taken an estate in fee simple in the premises, we take the law to be clear, that the remainder over to Abel James, (Vid. Doug. 505, note. 2 Woodeson. 208, 209. 1 Ed. Ray. 208.) if it can be termed such, would have been merely contingent, and not vested.
    
      But supposing the devise to the issue of John Parrock, to be in tail, could the remainder limited to Abel James in fee, be considered as vested ?
    These rules are laid down as to contingent remainders, in 3 Bl. Com. 169, 170. Contingent remainders are, where there is an uncertain person, or uncertain event. They must vest in the grantee, during the continuance of the particular estate, or eo instanti that it determines. The precedent particulai estate and the remainder, are one estate in law, and must be in esse at the same time. There can be no intervening estate between the particular estate and the remainder supported thereby.
    There are four species of contingent remainders, according to Fearne, (pa. 3,) 1. Where the determination of the preceding estate is itself dubious and contingent. 2. When the condition on which the remainder is to take effect, is independent of the determination of the preceding estate. 3. When the condition upon which the remainder is limited is certain in event, but the determination of the particular estate may happen before it. 4. Where the person to, whom the remainder is limited, is not yet ascertained, or not yet in being.
    If Abel James had anticipated the event, and paid the managers of the Pennsylvania hospital 300I. then possibly the remainder might have vested, if the same had been done before the attainder of John Parrock. But the case states, that the payment was not made until the 38th June 1791, after the destruction of the qtie estate. The contingency subsisted at the time of the forfeiture; and Abel James or his heirs might have refused to pay the 300I. and in such case would have taken no title.
    Devise to A for life, and in case he should have any issue male, *then to such issue male and his heirs for ever, r*ooo and if he should die without issue male, then to B and L his heirs for ever; it was holden, that the first remainder to the issue of A was contingent; and being in fee, the limitation over to B was therefore contingent also. 3 Woodeson. Eng. Daw. 208, 209. Cites 1 Ed. Ray. 208. Though the second devise in fee, cannot be properly termed a remainder in respect to the former devise in fee, yet in respect of the life estate, they were both contingent remainders in fee, and as such barred by a common recovery suffered. 1 P. Wms. 509.
    Wherefore it was prayed that judgment should be rendered for the defendant.
    The cause was continued over, under a curia advisare vult; and now in this term the judges pronounced their opinions, in solemn arguments on the bench.
    M’Kean, C. J. After fully stating the case and the questions before the court:
    Abel James on the 15th September 1779, filed his claim to an acre and an half of land in the Northern Eiberties of Philadelphia, being parcel of the devise to John Parrock. He therein set forth, that “John Parrock having no children, “and not being likely to have any, he thought he would be “entitled to the fee of the premises; and therefore prayed the “court to consider the premises, and make such ■deecree “therein as was agreeable to law and justice.”
    On the 13th of April 1780, the court having heard Mr. Sergeant, then attorney general, in behalf of the commonwealth, and Mr. Eewis for the claimant, dismissed the claim.
    It appears that a supplement to the act of attainder had passed on the 29th of March preceding; by the 8th section of which, any person, other than such as claimed under the attainted or convicted traitor, might bring his action for any lands seized as the estate of such traitor, in any of the courts of record in the state, in the usual way, and have a trial by jury. James’s claim not being for the payment of money, or satisfaction out of John Parrock’s estate, was therefore improperly brought before the Supreme Court in that way, and could answer no purpose, unless to get their opinion on an abstract question, not cognizable by them, without the intervention of a jury. However, as it had been disputed between the counsel, whether John Parrock’s estate was for life, or in tail, the court found no difficulty in delivering their opinion, that it was an estate tail; but no opinion was given whether Abel James had a vested or contingent remainder in it, nor was that point debated in court. Abel James had ex-*3391 *hibited his claim but for a small part of what had ■ J been devised to John Parrock, to the whole of which he had an equal right. This circumstance was not unnoticed. Besides he had not then, and might never have any right to the possession of the premises; whenever he should, it would then be time enough to bring his ejectment, or other action. In every view therefore, it appeared to be premature and improper, and hence the claim was dismissed.
    Having premised thus much, that there port in Dallas 47 may be fully understood, I shall proceed to give my opinion on the questions now formally before the court.
    It appears to me on full consideration extremely clear, that John Parrock, under the will of his sister Sarah, took an estate tail in the premises mentioned in the declaration; and that the life estate first given to him in express words was merged in the inheritance, to effectuate the manifest general intention of the testatrix; and that if any of his issue successively had lived to the age of twenty one years, a contingent fee would have passed to such issue, and the limitation to Abel James in such case, could never have taken effect in possession. Vid. 2 Wils. 322. 1 Burr. 38. 3 Burr. 1570, 1626. 3 Atky. 784. 4 Term Rep. 82, and many other cases.
    By the attainder, all the estate of John Parrock, in Pennsylvania, was forfeited to the commonwealth, hut no more. It continued in the commonwealth until he and his issue should be extinct; and if he had left issue who should have arrived fo twenty one years of age, it would' have continued for ever. But as John Parrock died in 1791, never having had any lawful issue, the estate .of the commonwealth then ceased, and the premises devised to him became vested in possession in the assignees of Abel James, and by their lease in the lessor of the plaintiff. Plowd. 557. Jenk. Cent. 286, pi. 21. 2 Bac. 125. 4 Bl. Com. 374.
    The testatrix devised the premises to John Parrock in fee tail, and if none of the issue lived till of age, the remainder in fee to Abel James. Now though it was uncertain whether any of the issue would live till of age, yet that uncertainty does not make the remainder to Abel James contingent in point of interest, but only in respect of the possession, and does not come within the definition of a contingent estate. 3 Wils. 247.
    Wherever there is a particular .estate which does not depend on an uncertain event for its continuance, and a remainder is limited thereon absolutely to a person in esse, notwithstanding a contingent remainder intervenes between the particular estate and the limitation over to such person, if such intervening limi * tation does not vest the fee absolutely, it is a remainder vested in interest. 1 Co. 137. Hutt. 119. •-
    “It is not the uncertainty of ever taking effect in possession, that makes a remainder contingent; for to that every ‘ ‘ remainder for life or in tail is and must be liable, as the “remainder man may die, or die without issue, before the ‘ ‘ death of the tenant for life. The present capacity of taking ‘ ‘ effect in possession, if the possession were to become vacant, ‘ ‘ and not the certainty that the possession will become vacant “before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent.” I have cited the words of Fearne’s learned Essay on Contingent Remainders, in pa. 149, in illustration of which he has cited several cases.
    By this devise to Abel James, it rather seems to me that he had an immediate fixed right of future enjoyment, a vested interest, which was transferrable or transmissible, though it was uncertain whether i-t would ever vest in possession; for that depended upon, whether any of the issue of John Parrock should live to the age of twenty-one years or not: if any of them had lived so long, the estate would have vested in interest and possession in such issue in fee by interposition, and the vested right of Abel James would have opened and separated itself from the estate tail, and have been gone forever. 3 Atky. 774.
    Cases of this sort do not often occur here, but my judgment has been guided by the best information I could obtain; and I confess, I am in a great measure governed by the plain general intention of the testatrix, collected from her will, which ought to take place, unless restrained by some rule of law. Upon the whole, the best opinion I can give is in favour of the plaintiff.
    
      
      The circumstances in this case were: 1. A devise of lands in gavelkind. 2. Devise was to her heirs female, as well as male. 3. It was equally to be divided between them. 4. They were made tenants in common, which shews they were not to take by descent; for then they must bz.parceners.
      
    
   Shippen J.

I am clearly of opinion, that the word ‘1 issue, ’ ’ in the will of Sarah Parrock, must be construed a word of limitation, in order to effectuaté the. intention of the testator, to let in the issue by succession, which cannot be done unless the estate given to the father be construed an estate tail.

It has been qestioned, whether as John Parrock had the right of suffering a common recovery, when the estate came into the hands of the commonwealth by forfeiture, it did not come with that right annexed to' it, so as to vest an absolute fee simple in the state? Or whether only such an estate as was liable to be divested by him in remainder, after a failure of issue of John Parrock ?

No cases appear to shew that a vested remainder can be forfeited by the attainder of the tenant in tail; but on the *04-11 contrary, *many authorities have been cited by the J plaintiff’s counsel, which prove that the king shall hold the forfeited estate only, while the issue in tail remain.

But by the express words of the act of assembly of 1778, only such lands and estates as the persons attainted shall have been possessed of, interested in, or entitled unto, on the 4th July 1776, or at any time afterwards,-in their own right, or to their use, or whereof any other person or persons shall have been possessed of, interested' in, or entitled unto, to the use of, or in trust for them, according to the respective estates and interests, which the persons attainted, or any in trust for them shall have had therein, or might forfeit by such attainder, stand and be forfeited to the state without any office found, &c.

And by the subsequent act of 1779, there is an express provision, that nothing in this act shall be construed to extend, so as to debar or prevent any person or persons, other than such as claim under any attainted traitor, from pursuing his or her action or actions in any court of record, in the usual way, for the trial of his or her title to any lands seized as the estate of any such traitor.

The first act forfeits only such estates as the traitor had in his own right, or for his own use, according to the respective interests which the attainted persons had therein: the second act expressly saves the rights of all other persons who do not claim under the attainted traitor. The traitor can only forfeit his own right and estate, and not the rights and estates of others.

The case lastly, has been taken up on another ground, viz. that the remainder in this case is contingent, which is destroyed by the forfeiture of the particular estate on which it depended.

The contingency is, that Abel James, his heirs or assigns, are to have the remainder, on condition that he or they should pay to the managers of the Pennsylvania Hospital the sum of 300I., in three months after the decease of the tenant in tail.

There is an express authority given to the contributors óf the hospital to recover the 300I., which manifests an intension in the testator, that it should rather be considered a charge on the real estate, than a condition to prevent its vesting in Abel James. To construe' it a contingent remainder, would clash with the very words of the will, which expressly directs the payment to be made after the death of John Par-rock, whereas a contingent remainder must vest, during the continuance of the particular estate, or eo instanti that it determine.

The result of my opinion therefore is with the plaintiff.

Yeates J.

I fully conciir with my brethren, that John Par*rock, under the words of the will stated, took an estate tail. The general manifest intention of the tes- *- trix clearly was, that the real estate should not go over to Abel James, but upon a failure of issue of her brother. Her design of giving him an estate for life, is legally incompatible with her weightier intention, that her brother’s issue should inherit after his death; for if John Parrock had only taken an estate for life, his issue could never have taken: and although it eventually happened that he had no children, yet we must consider this case as if the fact had been otherwise. 2 Wils. 323. There are many determinations which warrant the court to give that effect to the will, which will best answer the devisor’s general intention, though by so doing we may defeat some particular intention. Besides the cases mentioned by the chief justice, and those cited in Dall. 48, vide 8 Vin. Abr. 233. Cowp. 411. 1 Vent. 214. 2 Lev. 58. 3 KLeb. 42. 1 Wins. 371, 399, 624. Gilb. Eq. Rep. 149.

It also strikes me strongly, that if John Parrock had sons or daughters who could have inherited this property, they would have taken it also in tail. The limitation is “to his “lawful issue; but in case of my said brother’s departing this “life without such issue, or they dying under the .age of “twenty-one years and without lawful issue, then the remain“der over to Abel James, his heirs and assigns.” Whatever were the intentions of the testatrix in fact, she has made use of proper technical expressions, to convey an estate in fee tail to her brother’s children.’ She uses the words ‘ ‘ issue, ” “such “issue dying without issue,” and “heirs and assigns;” and we are bound to say (in the language of Judge Buller, 3 Term Rep. 493) that “she understood the meaning of each, and we “cannot substitute one for the other, unless by unavoidable “and necessary construction, in order to make sense of the “will.” Rut no such necessity exists in this case. Vide Eit. Rep- 345-

The estate and interest of John Parrock in the premises was forfeited to the commonwealth by his attainder of high treason. The forfeiture operated as long as the issue in tail should continue, but no longer, according to the cases cited by plaintiff’s counsel. The estate and interest of the traitor only is forfeited by the act of 6th Marbh 1778; and by the supplement thereto it is expressly declared, § 8, that ‘ ‘ this act ‘ ‘ shall not prevent others, than such as claim under any at-1 ‘ tainted or convicted traitor, from pursuing their actions in ‘ ‘ any court of record. ’ ’

The only question which remains to be considered is, whether the remainder limited to Abel James in fee simple, is a contingent remainder (technically speaking) or vested, if *3431 it is the * former, the particular estate of John Parrock •J being determined by his attainder, the contingent remainder is destroyed, and the commonwealth shall have the fee, discharged of all remainders, according to Palmer’s case. Noy, 102. For the remainder cannot vest, where the particular estate is destroyed before the contingency happens, whereby the remainder becomes vested. 1 Co. 66, 1-35. But if the remainder to Abel James was vested, then it is otherwise.

A passage from Eearne, 3d ed. 149, 4th ed. 328, has already been cited by the chief justice. The same author, 4th ed. 330, adds, “ Wherever the preceding estate is limited so as to ‘ ‘ determine on an event which certainly must happen, and ‘ ‘ the remainder is so limited 'to a person in esse and ascertained, that the preceding estate may by any means deter- “ mine before the expiration of the estate limited in remainder, such remainder is vested.” To the same effect are the sentiments of Ford Chief Justice Willes, in the case of Smith on the demise of Dormer v. Packhurst et al. in the house of lords. ^Atky. 138, 139.

It is said by Justice Buller, 3 Term Rep. 494, that “courts “of law always lean in favour of vesting estates;” and by Rider Chief' Justice, “It is a known rule of law, that where “particular estates of freehold are limited, with particular ‘ ‘ contingent remainders over to persons not in being, and ‘ ‘ then comes a remainder over in fee to one in being, that is “a vested remainder, until the intermediate remainders come “ in esse, and then it opens to let them in.” 3 Wils. 246.

A limitation to one for life, remainder to his first and other sons in tail not then in being (which is contingent) with remainder to one in esse, the last remainder is vested, notwithstanding the intervention of the estates tail. 3 Wils'. 247, 248.

A vested remainder may be well limited after an estate tail, whether the estate tail be vested or contingent. 1 Ford Ray, 209. 1 Salk. 224. Lit. Rep. 347. 3 Term Rep. 488 (note a.) Ives v. Legge.

Explained in Lyle v. Richards, 9 S. & R., 344, where the court said: “The attainder in Evans v. Davis operated only on the individual interest of the person attainted, and if his estate had been annihilated, there would have been nothing in the commonwealth to prevent the person having the next vested remainder, from immediately entering. ’ ’

Evans v. Davis was criticised by Gibson, J., who said that even on common law principles he would have come to a different conclusion. Lyle v. Richards, 9 S. & R., 344.

Referred to in 21 Pa., 348.

Cited in 77 Pa., 284, as an illustration of a vested remainder.

MEMORANDUM.

The honorable William Bradford, esq. resigned his commission as one of the justices of the Supreme Court the last day of this term, and was appointed attorney general of the United States.

The honorable Thomas Smith, esq. was appointed to succeed him, and his commission quamdm se bene gesserit, dated the 31st January 1794, was published in open court on the 7th April 1794.

But after a contingent fee is limited, no subsequent limitation can be vested. 10 Co. 85. 3 Sid. 47. 1 Rev. n. Pearne, 3d ed. 160, 161, 276, 277, 294, 295.

Under the authority of these cases, my mind is satisfied that the remainder limited to Abel James was a vested remainder. The intention of the testatrix is clearly expressed, that the death of John Parrock should precede the payment of the 300I. charged on the lands, and devised to the ‘managers of the Pennsylvania Hospital, and consequently this construction is most agreeable to such intention.

*1 am therefore clearly of opinion, as the executors and assignees of Abel James have, since the death of the said Abel, paid the 300I. to that institution, that the plaintiff is well entitled to a recovery of the premises.

Absente, Bradford J.; but he concurred in opinion with the other members of the court.

Judgment for the plaintiff.  