
    Case 28 — PETITION EQUITY
    October 20.
    Fletcher, &c., v. Tyler, &c.
    APPEAL PROM DAVEISS CIRCUIT COURT.
    Construction op Deed to Wipe and Children, mWhere one purchases and pays for land for the benefit of his wife and children and has it conveyed to the wife "and the heirs of her. body” by him, the wife takes a life estate and her children by him, whether born before or after the execution of the deed, take in remainder, and not jointly with their mother. And'this is true, although the wife “and the heirs of her body” are bpth named as parties of the second part to the deed.
    J. A. DEAN POR APPELLANTS.
    1. -As Woodson Eletcher paid the purchase price and-, procured the deed to be made it should be construed as though he were himself the grantor. (Smith v. Upton,. 12 Ky. Law Bep., 28.)
    2. Where the husband makes provision for the wife and children an intention should be presumed upon his part to give the whole of it to her for life, remainder to the children. (Davis v. Hardin, 80 Ky., 672.)
    B. W. SLACK op counsel on same side.
    WILEBED OABBIOO por appellee.
    1. Under the deed from Woodson Eletcher to his wife and children the wife and her two children in esse at the date of the deed took under it as joint tenants in fee, and upon the birth of each of the seven after-born children the estate opened and let in such child as a joint tenant. (Turner, v. Patterson, 5 Dana, 298; Gill's Heirs v. Logan's Heirs, 11 B. M., 234; Cessna v. Cessna, 4 Bush, 516; Powell v. Powell, 5 Bush, 619; Tucker v. Tucker, 78 Ky., 503; Doe v. Considine, 6 Wall,, 458.)
    2. If the mother took a life estate only, the remainder, eo instanti with the execution of the deed, became vested in the two children then living, and upon the birth of the others the estate opened and they became joint tenants in a vested remainder, and. upon the death of. each of the five children its interest passed to the father under the statute of descent. (Turner v. Patterson, 5 Dana, 293.)
    Estates will vest at the earliest possible period. A devise to a class vests as they come in esse and opens to let in after-born. (Doe v. Considine, 6 Wall., 458; McArthur v. Scott, 113 U. S., 340; Carver v. Jackson, 4 Pet., 90; Washburn on Real Property, 5th Ed., vol. 2,. pp. 599 and 600.)
    A remainder will never be held to be contingent when, consistently with the intention, it can be held to be vested. (Cooxall v. Sherrerd, 5 Wall., 368.)
   JUDGE BENNETT

delivered .the opinion op the court.

This action was brought by the appellees against the-appellants to subject the supposed interest of the appellant; Woodson Fletcher, in a house and lot in the city of Owensboro to the satisfaction of their judgment against him.

The granting clause of the deed, by which said lot. is held, is as follows: “ This indenture made and entered, into this, the 28th day of May, 1851, by and between O. F. Stirman of. one part and Ohloe Ann Fletcher and the heirs of her body by Woodson Fletcher upon her begotten, for and in the consideration,” etc. (naming the consideration), “ do hereby sell and convey to Ohloe Ann Fletcher and the heirs of her body aforesaid,” etc.

It is a fact that the appellant, Woodson Fletcher, husband of Ohloe Ann Fletcher and the father of the then born children of her body and of her children thereafter born, bought and paid for said house and lot for the benefit of his said wife and children. It is also a fact that the purchase thus made, he not being indebted at the time, was not a fraud upon his creditors nor was it intended to be a fraud upon them. Chloe Ann Eleteher, the wife, and some of the children who were living at the time of the conveyance, and some of those that were born after the conveyance, having died, and the lower court having decided that said wife and the then living children took a present joint estate in fee in said land, and that the appellant, Woodson Eleteher, having inherited the interests of those that had died, etc., said interests were subject to the appellee’s demand, etc., the appellants; have appealed from that judgment.

The sole question necessary to be determined is, what estate did Chloe Ann Eleteher and the heirs of her body take by said deed ? The lower court thought that the case of Tucker, &c., v. Tucker, &c., 78 Ky., 503, controlled the case; hence, it held that Chloe Ann Fletcher took a joint estate in fee with said living children. The appellants contend that Chloe Ann Eleteher took a life estate only and all of said children took an estate in remainder. We concur in the latter contention.

In the case of Smith v. Upton, 12 Ky. Rep., 27, the conveyance was made “ to Mrs. Smith and her children ” by Upton; the consideration moving from Mrs. Smith’s husband. It was held in that case that, as the consideration moved from the husband, the deed, for the purpose of construction, should be regarded as having been made by him; that the intention of the parties is gathered from the language of the deed, as such language is explained by the attendant circumstances and the relation of the parties and must control. Hence, it was held that it was evidently the intention of the husband to give the whole estate to his wife and their children, for whom he was under equal obligation to provide; that this could be certainly done by giving to the wife a life estate, remainder to their children. "Whereas to construe the instrument as" giving to the wife and phildren a joint estate in fee might defeat this intention "by the wife’s interest passing to her children by a second marriage, who would be strangers to his blood and for whom he was under no legal of moral obligation to provide. Also, the court’s construction that the wife and children took a joint present interest in fee, and that, consequently, none but those living at the time could take directly as- grantees, clearly defeated the intention of the grantor. '

In the line above indicated is the well-considered casé of Davis v. Hardin, 80 Ky., 672; also the case of Bodine’s Adm’r v. Arthur, &c., 91 Ky., 53. In the'latter case it was held that, as the'éstate was confined 'to the" heirs of the body in the habendum and not-in the granting clause, they could not take a present estate as grantees, but they could take an estate in remainder. But the case also gives and adheres to the reasons given in the other cases; supra. ' " ■ ■

The judgment is reversed' and the case is remanded with direction for further proceedings consistently with this opinion.  