
    *Elijah Taylor v. Samuel C. Foster's Administrator and Alexander Simpson and Christiana R. Simpson, his wife.
    By the will of a testatrix, after directing the payment of her debts, it was provided as follows:
    “ Secondly: I will that the children of the body of my niece, J. F., shall be my only heirs. I therefore hereby give and bequeath to the said children, namely, J. M. F., R. R. F., S. 0. F., J. W. F., and O. R. F., all my estate, both real and personal.”
    “ Thirdly; It is my will that if any of the children of my niece named in the second place should die without issue, that the share or shares of such decedent or decedents shall be equally divided among the survivors of them.”
    Held, that as to the real estate of the testatrix held by her in fee, there was vested in each of her devisees, in common with the others, an estate in fee simple, but determinable, nevertheless, as to each of them, on the contingency of his or her dying without issue; that on the happening of such contingency, the estate of the decedent or decedents passed to the survivor or survivors by way of executory devise; and that on the death, without issue, of either of the devisees who, under the provisions of the will, had succeeded to a portion of the share of a prior decedent, the portion or portions to which he had thus succeeded was subject to the same contingency as Ms original share, and passed to the survivor or survivors in like manner.
    Civil action. Reserved in the district court of Preble county.
    October 3, 1850, Christena Reed, of Preble county, being aged, unmarried, and childless, executed her last will and testament, in extremis, and died within a few hours thereafter.
    For many years previous to her death, the testatrix had resided in the family of her niece, Jane Foster, wife of Rev. Alexander M. Foster, and was much attached to her children.
    The items of the will read as follows:
    “ Firstly. I will that all my just debts and funeral expenses be fully paid.
    “ Secondly. I will that the children of the body of my niece, Jane Foster, wife of the Rev. Alexander M. Foster, in the township-of Israel, in the county of Preble aforesaid, shall be my only heirs. I therefore hereby give and bequeath to the said children, namely, John McG-aw Foster, Robert Reed Foster, Samuel Crosby Foster, James "Worth Foster, and Christena Reed Foster, all my estate, both real and personal, to them, their heirs, and assigns, forever.
    *“ Thirdly. It is my will that if any of the children of my niece named in the second place die without issue, that the share or shares of such decedent or decedents shall be equally divided among the survivors of them.”
    The fourth clause named the executors, etc.
    The testatrix owned and left the real estate in question. .
    Soon after its execution, the will was probated and recorded.
    The five devisees survived the testatrix.
    Three of them, to wit, Robert, James, and John, died in 1858, in the order named, unmarried, without issue, and intestate as to the-real estate mentioned.
    In 1861, the devisee, Samuel Crosby Foster, executed to the plaintiff his note for $700, and also executed a mortgage to secure it, on the real estate devised in the will of Christena Reed, and died, in 1862, intestate and without issue; and an administrator was appointed.
    September 7,1863, Taylor filed his petition to foreclose the mortgage, which, in addition to the usual averments, states that the-money loaned by him to Samuel C. Foster, and for which the note-was given, was applied by him and his deceased brother John, in 'building a new house, which cost about $1,000, on the mortgaged premises; that in the lifetime of John and Samuel they were tenants in common, with their sister Ohristena, in the premises; that, on the death of John, his interest therein passed to the other two, as tenants in common; that they occupied that relation when the mortgage was executed; and that Ohristena (intermarried with Alexander Simpson) owns the undivided one-half of the premises in fee simple; and that Samuel, when he executed the mortgage, and at his death, owned the other undivided half, in law and equity, together with the value of the house erected thereon, by him and his brother John, but which was paid for by Samuel. The petition asked relief accordingly. The petition makes Samuel’s administrator and Ohristena and her husband defendants.
    The husband and wife answer: That she owns the real estate in fee simple; that it is not liable to be sold to pay the note executed by Samuel to the plaintiff; that the testatrix, ^Ohristena Reed, owned the premises when she died, and made the will as stated; that the brothers, Robert, James, John, and Samuel died, as stated, unmarried and without issue, and intestate; and that under the third clause of the will, she, Ohristena, as sole survivor, is the owner in foe simple of the premises, and that the mortgage, as against her, is inoperative and void. They also deny that the money loaned by the plaintiff to Samuel, was applied to the erection of the house mentioned in the petition, the house having been built before the money was loaned; or that the plaintiff has any equitable rights, as against the defendant Ohristena, either in the lands or the house which was built when she was a minor, without her consent or consultation with her. These defendants aver that Samuel’s estate in the premises, at the time he executed the mortgage, was a contingent estate liable to bo defeated by his death without issue. They ask also, affirmatively, that the mortgage may be declared void as against said Ohristena, and that the same may be canceled by order of the court; and for further relief.
    Samuel’s administrator answers, separately, that the note mentioned in the petition is a valid claim against his intestate’s estate; that as to the mortgage, he refers to the answer of the other two defendants for the facts, and that, as administrator, he will abide by the order of the court thereon.
    
      Taylor demurs to the answers of the defendants, as not constituting a defense to his action.
    The case being in the district court on appeal by the plaintiff, was therein reserved for decision here.
    
      Hubbarcl & Freeman and Thomas Millildn, for plaintiff:
    1. We claim that the estate vested absolutely in the five children,, at the death of Christena Reed, in 1850.
    By the second item of her will she makes these children her “ only heirs,” and then devises all her estate “ to them, their heirs and assigns-forever.”
    
    The difficulty arises from the third item of the will, and must be-settled by an answer to the question — to what period do the words- “ die without issue” and “ survivors” refer?
    We claim they refer to the period of the death of the testatrix, *when the will took effect. S. & C. Stat. 1627, secs. 18, 56, 505; 1 Jarman on Wills, 726; 2 Ib. 631-33, and cases cited; 2 Williams on Ex’rs, 1254, and cases cited, 1255; 4 Kent, 203, (marg.) note c; 25 Wend. 119; Lawrence v. McArthur, 10 Ohio, 41; 3 Greenl. Cruise, 409, 454, 458, note; Parish v. Ferris, 6 Ohio St. 563.
    2. At all events, the shares of Eobert Eeed Poster, James W. Poster, and John MeGraw Poster, who died intestate, unmarried, and without issue, prior to the execution of the mortgage, vested at their-deaths in Samuel C. Poster and the defendant Christena Simpson. To that extent Samuel C. Poster was absolute fee simple owner, and. it is held by the mortgage.
    By the terms of the will, the three children dying without issue, “ the share or shares of such decedent or decedents shall be equally divided among the survivors of them.” Suppose we admit that the one-fifth of the estate devised to Samuel C. Poster was defeated by his death without issue, yet such could not be the case with reference to the shares of Eobert, James and John, which at their death, passed by descent to Samuel C. and Christena.
    The word “ survivor ” qualifies the words “ die without issue,” and makes them mean “ dying without issue at the time of his death.” Cutler v. Daughty, 23 Wend. 513; 4 Kent, 279, note c.
    The construction claimed by defendant is opposed to publie policy and the statute against entailments. S. & C. Stat. 550.
    
      Gilmore & Campbell, for Christena E. Simpson:
    
      1. We claim that the will creates and vests in the five children of Jane Foster a fee simple interest in the lands, at the death of the testatrix, with an executory devise or limitation over to the survivors or survivor, in the event of the death, at any time, of one or more of said children, without issue living at such death or deaths. 1 Jarman on Wills (margin), 778, 280, and notes; note 1, and authorities there referred to, 781; 4 Kent Com. (margin) 269, 270.
    2. The words “ survivors ” and “ die without issue,” as used in the third clause of the will, refer to the death or deaths of *one or more of the legatees, and not to the death of the testatrix. They are used in their “ plain, popular and natural meaning.” Parish v. Ferris, 6 Ohio St. 563; 4 Kent Com. (side) 278, 279; 2 Jarman on Wills (margin), 670.
    3. The fee simple which vested by the will in the first taker was inalienable. 4 Kent’s Com. (margin) 270.
    4. The executory devise in this case limits the-entire estate in fee simple absolute to Christena R. Simpson, on the deaths of her four .brothers “ without issue,” which has happened, and the mortgage of Samuel C. Foster as against her is void. 4 Kent (side), 15, 264-67 ; Hart v. Thompson, 3 B. Mon. 482; Morgan v. Morgan, 5 Day, 517; Parish v. Ferris, 6 Ohio St. 563; Anderson v. Jackson, 16 Johns. 382.
   Brinkerhoff, J.

We are of opinion that, by the will of Christena Reed, there was vested in each of her devisees, in common with the others, an estate in fee simple, but determinable, nevertheless, as to each of them, on the contingency of his or her dying without issue; that on the happening of such contingency, the estate of the decedent or decedents passed to the survivor or survivors by way of executory devise; and that on the death without issue of either of the devisees, who under the provisions of the will had succeeeed to a portion of the share of a prior decedent, the portion or portions to which he had thus succeeded was subject to the same contingency as his original share, and passed to the survivor or survivors in like manner.

It follows, that at the time of the execution of the mortgage to the plaintiff by Samuel Crosby Foster, the only absolutely certain estate held by the mortgagor was an estate for his own life; he could convey no greater estate than he had; and he dying without issue, his contingent estate passed over to his sister, the defendant, she being then the sole surviving devisee.

Demurrer to answer overruled, and cause remanded.

Day, C. J., and White, Welch, and Scott, J.T., concurred.  