
    Thomas G. Smith v. Elias Block.
    Beal estate was conveyed to C. for life, and after her death to her children by E., during the life of each of the children, and after their death to E. and to his heirs, habendum to O. during life, and after her death to the “ said surviving children,” and after the death of each of them to E. and his heirs. Held:
    
    1. That the provision for the children was contingent upon their surviving their mother, and only such of the children as survived her took the estate.
    .2. That E. took a vested remainder in fee, subject to the intervening contingent estate of the children.
    Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    The plaintiff in error, wbo was the plaintiff below, claims to own an estate for life in an undivided interest in a parcel ■of real estate in the city of Cincinnati; and he brought the original action to recover possession thereof.
    This estate for life he claims to derive from his deceased wife, under the first section of the statute of descents, as surviving husband.
    His wife, Helen Y. Smith, was the daughter of Catharine and Elijah Smith, and her title to the land in which the plaintiff’ claims a life estate, is sought to be derived from two deeds of conveyance.
    The first of these deeds was executed September 1,1846, by Helen McDowell; and the deed states that in consideration of two thousand dollars paid by Catharine Smith and Elijah Smith, the grantor conveys the whole of the lot or parcel of lands to “ Catharine Smith during her natural life, and after her death to the children of Elijah Smith and Catharine Smith, during the natural life of each' of said children, and after their death, to said Elijah Smith in fee, and to his heirs and assigns forever.”
    The habendum clause is as follows: “ To have and to hold the same to the said Catharine Smith during her natural life, and after her death, to the said surviving children of Elijah Smith and Catharine Smith, his wife; and after the death of each of said children, to said Elijah Smith in fee, and to his heirs and assigns forever.”
    At the date of this deed, Elijah Smith and Catharine Smith were husband and wife, and had then living five ■children, of whom Helen V., subsequently married to the plaintiff", was one.
    In 1849, Elijah and Catharine were divorced; and on the 3d of June, 1852, for the nominal consideration of one dollar paid by Catharine Smith, Elijah executed a deed in terms conveying the premises to “ Catharine Smith during her natural life, and after her death, to the children of Elijah and Catharine Smith, their heirs and assigns forever.”
    Helen Y. Smith and the plaintiff were man’ied January 1, 1855; and she died in July, 1857, intestate, leaving no issue surviving.
    Between the time of her death and the making of the deed by Elijah Smith, two of the other children of Catharine and Elijah had died, intestate and without issue.
    Catharine died November 10,1870. Only two of the children survived her, viz., Charles M. Smith and Clarence E. Smith, both of whom are still living.
    The defendant, Block, derives title to the premises by purchase, under an order of sale made by the court of common pleas, in a suit instituted in 1864, by Catharine, for the purpose. To this suit all the then surviving children were parties as well as Elijah Smith; but the plaintiff wa3 ■not.
    
      The foregoing statement contains all that is material to-an understanding of the decision.
    The superior court at special term rendered judgment for the defendant, which was afterward affirmed by the court in general term.
    It is now sought to obtain the reversal of these judgments.
    
      Reuben Tyler, for plaintiff in error,
    claimed that the plaintiff’s title was based on the following propositions :
    1. Ey the deed from Helen McDowell vested remainders-were conveyed to the children of Elijah and CatharineSmith for their several lives, and remainder in fee to Elijah Smith ; possession of the children after the death of their mother, and possession in Elijah Smith, upon the death of each child, of the share of such child, subject to the estate-of Catharine Smith.
    2. By the deed from Elijah Smith the life estates of the children became merged in the fee, so that the children became the owners of the fee as tenants in common, subject only to the life estate of their mother.
    3. By the death of Helen G-. Smith, intestate, without-issue surviving her, her husband, the plaintiff, took a life estate in all ancestral real estate of which she was the owner at the time of her death, and became entitled to the possession of one-fourth of the premises described in the petition upon the death of Catharine Smith.
    And for a definition of remainders referred to : 4 Kent, 202-206; 2 Blackstone, 168, 169; Fearne on Contingent Remainders, 216; 2 Washburne on Real Property, ch. 4, sec. 1, paragraphs 6, 9, 12, 15-17, 19.
    And applying the law as laid down in the authorities referred to, he claimed that the deed from Helen McDowell conveyed estates as follows: 1. To Catharine Smith for her life ; 2. To the children of Catharine and Elijah Smith “ during the natural life of each of said children;” and 3. To Elijah Smith in fee. The event upon which the remainders of the children were limited was the death of Catharine Smith, which was certain to occur. The events upon-which the remainder of Elijah Smith was limited were-the deaths of each of the children, which were also certain to occur. Both the children and Elijah Smith were in-being, and ready and- able to take the remainders given them by the deed upon the termination of the preceding particular estates. They had what the law says is the characteristic which “ distinguishes a vested from a contingent remainder ” — that is, the “ present capacity of taking possession,” if the particular estate should terminate at any time.
    The remainders given by the deed correspond exactly to the definition of vested remainders as laid down in the law, and none of the events upon which they are limited are-contingent — that is, may or may not happen.
    A vested remainder may be either a present right to present possession, or present right to future possession. The remainder conveyed by said deed from Helen McDowell to Catharine Smith was a present right to present possession; the remainders to the children and Elijah Smith were present rights to future possession. They were all vested remainders. All the parties, by virtue of said deed, became the owners of a present, vested^ right and interest in said premises. Catharine Smith’s right was to present possession and enjoyment; the rights of the others were to future possession and enjoyment. At the time of the deed from. Elijah Smith, Catharine Smith was in possession, and was-the owner of the tohole premises for the term of her life. Each one of the six children then living was the owner of an equal undivided' one-sixth of said premises for his or her life, subject to the life estate of their mother, and Elijah Smith was the owner of the fee of said premises, subject to-the life estate of Catharine Smith and said children. Upon the death of any of the children before the death of Catharine Smith, the interests of the surviving children would not have been enlarged. A life estate could not survive its-owner, but Elijah Smith would have taken, upon the death of Catharine Smith, the on e-sixth of the whole premises in-fee simple, free from the preceding life estates, and the surviving children would have been entitled each to his or her on e-sixth for his or her life. And so, upon the death of ■each child, after the death of Catharine Smith, Elijah Smith would have come into possession of one-sixth more of said premises. In that way, the evident intent and purpose of the deed from Helen McDowell would have been carried out, and in no other way could it be accomplished.
    But the deed from Elijah Smith in 1852, while all the children were living, and each was the owner of a vested life estate in the equal one-sixth of said premises, united their life estates with the fee, and the life estates were then .and there swallowed up and merged in the fee; and after the deed from Elijah Smith, each one of the children became the owner of an equal undivided one-sixth part of said premises in fee, subject only to the life estate of their mother. The life estates became merged in the fee, according to the doctrine of law laid down in 2 Blackstone, 177.
    The deed from Elijah Smith placed the title in precisely the same condition as if the deed from Helen McDowell had been to Catharine Smith for her life, and after her death to the children of Elijah and Catharine Smith in fee simple, except that in that event the property woúld not have been ancestral; but the nature and character of the title and interest held by the children would have been the ■same.
    The law under which plaintiff claims, as heir of his wife, was passed April 17,1857, and appears on page 501 of Swan & Critchfield, and page 194 of- volume 54 of Ohio Laws. Two of the children having died unmarried, and intestate, before the death of Helen Y. Smith, left her the owner of the equal undivided one-fourth in fee at the time of her death, subject to the life estate of Catharine Smith.
    I claim that it follows from the language of the deed of Helen McDowell, and the law in reference to the subject of remainders and merger, that by virtue of said deeds from Helen McDowell and Elijah Smith, the six children living :in 1852 became the owners of the fee simple of said premises, as tenants in common, subject to life estate of CatharineSmith ; that by the death of two of the children, leaving their brothers and sisters their heirs at law, the whole fee simple became vested in the four surviving children, before the death of plaintiff’s wife, and that she was such owner at the time of her death, and that, as heir of his wife, plaintiff' took a life estate in said undivided fourth of said-premises, with right of possession, after the death of Catharine Smith, which occurred November 10,1870.
    At the time of the deed from Elijah Smith, six children-were living. It was impossible then to know or say how many, if any, and who, among them all, would survive their mother. Their rights and interests at that time were-equal. Any one or all of them might or might not survive their mother. In this uncertainty, the law regards each of' them as the owner of an equal vested interest. This question is discussed and decided in Jeffers v. Thompson, 10 Ohio St. 101, and Moore v. Lyons, 25 Wendell, 119. As to meaning of “ when,” “ after,” see 25 Wendell, 144; 8 Barnwell & Cresswell, 231; 19 New York, 384.
    The deed from Elijah Smith, made at the time that all" of the children were owners óf a vested and equal interest,. gave to' them each an equal interest, and vested in them each an equal undivided on e-sixth in fee simple, subject to-life estate of their mother, and the result is the same, so far as the plaintiff is concerned, as if the deed from Helen McDowell had been made to Catharine Smith for her life, and after her death to her children in fee simple. The effect to be given to the habendum clause in a deed is as follows :
    1. If the language of the granting clause is vague, indefinite, or uncertain, the habendum clause may be referred to-for explanation.
    2. If the language of the habendum clause is inconsistent with or contradictory to the granting clause, it is to be disregarded. The granting clause controls.
    Now, the language and meaning of the granting clause seems to me plain, clear, and easily understood, and there is no necessity of any reference to-the habendum clause for--explanation. So it need not be examined in this case. But if there is any language in the habendum clause which justifies any claim to “ survivorship,” orto the doctrine that ■only the children who survive their mother are to take under the deed, such language is clearly inconsistent with and contradictory to the language of the granting clause. So all such language should be disregarded.
    But there is nothing in the use of the word “ surviving” in the habendum clause, which will justify or sustain the ■claim that it was the intent of the deed to limit the estate upon those children only who should survive their mother.
    It will be noticed that the word “surviving” is limited and controlled in meaning by the word “ said,” which precedes it in the habendum clause. The term “ said surviving children ” means the same children mentioned before, viz., the children of Catharine and Elijah Smith, Avithout any limitation — that is, all of them taken separately, as indicated by the word “ each.” Again, if any meaning at all is conveyed by the word “ surviving,” additional to the children named in the granting clause, it is important to consider the time to which it refers — whether to those “ surviving ” at the date of the deed, or at the death of Catharine Smith. I have not found any cases on the subject except such as .arose upon the construction of the term in wills. It seems to be well-settled laAv that the woi’d “surviving,” in a will, refers to the death of the testator; that is, to the time the instrument takes effect. Applying the same principle in this case, the word “ surviving” would refer to' the time of the date of the deed from Helen McDowell; and the result would be precisely as claimed by me in the first part of my brief — each of the children taking a vested remainder at ■the time the deed was made from Helen McDoAvell.
    
      Joseph Abraham, for defendant in error:
    I contend that the plaintiff in error has no present possessory right to any part of the land; that during the lifetime of any of the surviving childreu of Elijah and Catharine Smith, .they alone are entitled to the enjoyment of the whole estate, ¡and that only after the death of all of said surviving children, the right to possess said land belonged to Elijah Smith, the remainderman, and his assigns had the same rights only.
    By the clear and unmistakable terms of the deed from Helen McDowell, an estate for life was given to Catharine Smith; secondly, a life estate jointly to such children of Elijah and Catharine Smith as should survive her, and to the survivor of such children so long as one child lived, and that only upon the death of all of said children did Elijah Smith and his grantees have the right to the land. After the death of all of said children a fee simple vested in Elijah Smith. The deed in'this respect being clear and unambiguous, conveying to the surviving children the rightfto enjoy the whole estate, during the term of the life •of the last survivor, there can exist no rule of law, or power, other than the voluntary act of the survivor, to deprive him of the right to enjoy the whole of the estate during such term. If the claim of the plaintiff herein could be sustained, it would deprive the survivors of such right, and would be a manifest violation of the plainest rights acquired by the deed.
    As to the effect and uses of the habendum clause, see Deering v. Long Wharf, 25 Maine, 51; 3 Washburn on Real Property, 642, sec. 61; Ib. 644, sec. 63; Berry v. Billings, 44 Maine, 416; 2 Blackstone, 298.
    As to the doctrine of merger, see Simonton v. Gray, 34 Maine, 50; Myers v. Hewitt, 16 Ohio, 453; 4 Kent Com. 99.
    Applying the principles of law, as laid down in these authorities, to the case at bar, it is evident that the doctrine of merger can have no application in this cause, for there could be no merger, because there was not a meeting of two estates in one person. The plaintiff is not the heir of his wife, a child having been born during wedlock. S. & C. 501, sec. 1.
    
      Victor Abraham, also for defendant in error:
    In the deed under examination, the benefit does hot purport to be conferred on the children as individuals named, but as survivors of a class, which indicates that an immediate vesting was not in contemplation or intended. Swinton v. Legare, 2 McCord, 440, 590; Myer v. Myer, 2 McCord, 214; Walker v. Johnson, 70 N. C. 576.
    It can not, it seems, be otherwise than that this deed granted to the children of Catharine Smith, as a class, a contingent estate in remainder, to become vested in those of the class who should survive her death, when her death occurred, being an estate for their lives, and after the death of all such surviving children the remainder in fee-to Elijah Smith.
    In construing and determining the effect of the language • in the granting and habendum clauses of the deed, I refer to the following decisions of rules of construction: Mitchell v. Watson, 3 Cranch, 242; Higgins v. Wargatt, 34 Maine, 305; Pike v. Monroe, 36 Maine, 309.
    The possessory right to the property in controversy is in Elias Block. Olney v. Hull, 21 Pick. 311; Thompson v. Ludington, 104 Mass. 103.
   White, J.

The claim of the plaintiff is, in substance,, that each of the children of Catharine and Elijah Smith took, under the conveyance of Helen McDowell, a vested estate for life in the property conveyed; and'that on the-subsequent conveyance to them by Elijah Smith of his-interest, the estate of each became, under the doctrine qf merger, enlarged into an estate in fee, subject only to the' life estate of Catharine Smith.

This claim is founded on a misconception of the effect of the deed of Helen McDowell to Catharine Smith and the-children.

Under this deed, Catharine Smith took an estate for her own life, and Elijah took a vested remainder in fee, subject to an intervening life estate in favor of such of the children as might survive their mother.

The children are provided for as a class, and it is only such of the class as survive the mother for whom provision is made. If none of the children should survive the-mother the intervening estate would be destroyed, and the remainderman in fee would be let in to the possession immediately on the determination of the life estate of Catharine.

But if any of the class survive the mother, the survivors take the intervening estate, and thus postpone the remainder-man in fee until the intervening estate is determined.

At the time of the conveyance of Helen McDowell, there was neither an immediate right of present possession to the property nor a present fixed right of future possession in either of the children.

During the life of the mother, the right of the children to the possession of the estate was uncertain, depending upon their surviving their mother, the right belonging only to such as might so survive.

It is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent. 4 Kent, *206.

Without, however, entering into a consideration of the refinements which sometimes distinguish vested from contingent remainders, it may be remarked that the present case comes clearly within the fourth class of contingent remainders, as laid down by Mr. Eearne.

This class is thus defined by that writer: “Where the-person to whom the remainder is limited is not yet ascertained, or not yet in being.” 1 Fearne, *5; 4 Kent, *207.

Whether, in the present case, any of the children, and if any, which of them, would survive their mother, could, not be ascertained until her death.

That it was only such of the children/ as might survive' their mother who were intended to take, is apparent from the language of the habendum, as well as from the nature ofdhe provisions made for the children. The nature of the provision was such that it could only subsist during' the life or lives of such of them as might thus survive.

The language of the habendum is: “ To have and to' hold the same to the said Catharine Smith, during her natural life, aucl after her death, to the said surviving children of Catharine and Elijah Smith. . . .”

' The expression “ said surviving children ” refers to the children before mentioned in the granting clause, and shows expressly, what would otherwise be implied, that it was the children who might survive their mother for whom provision was made.

The plaintiff’s wife having died before her mother, she took nothing under the deed of Helen McDowell. What rights, if any, he may have through her under the conveyance of Elijah Smith to the children, is not a material inquiry in the present case ; for under that conveyance no right of possession can accrue until after the determination of the intervening life estate of the children.

Leave refused.  