
    Joseph Dixon et ux. versus Moses A. Picket.
    A testator, after devising real estate to his wife, for her life, proceeds : — “ I hereby devise to any child or children of mine which I shall leave at my decease and to their heirs, and to all the Gordons, (children of the testator’s wife by a former husband) who shall be living at her decease, equally to be divided amongst them all, the reversion and remainder of said real estate after the death of my wife, in equal portions to each of them and their heirs in common ; and if none of the Gordons be living at the decease of my wife, then the said reversion shall remain to my said child or children and their heirs.” The wife survived all her own children and the son and only child (by a former wife) of the testator, and died. It. was held, that the children of the wife had only a contingent remainder, which never vested ; and that the estate vested in the testator’s son, either under the devise or as heir at law, and descended to his heirs, and not to the collateral kindred of the testator.
    Petition for partition. The parties agreed, that in 1782 Benjamin Reed died seised of the premises described in the petition, leaving his wife Elizabeth, Richard Reed, a son by his former wife, and George Gordon, Nicholas Gordon and Elizabeth Gordon, children of his wife Elizabeth by a former husband.
    Benjamin Reed, in his last will, after giving all his real estate to his wife for life, devises as follows : — “I hereby give., devise and bequeath to any child or children of mine which I shall leave at my decease, and to their heirs, and to all the aforenamed Gordons who shall be living at the decease of my said wife, equally to be divided amongst them all, the reversion and remainder of my said real estate after the death of my said wife ; — to have and to hold the same to my said child or children, and to the said Gordons, who shall be living as aforesaid, at the decease of my said wife, in equal parts and portions to each and every of them and their and each of their heirs and assigns for ever, in common and not jointly ; and my will is, that if none of the said Gordons be living as aforesaid, at the decease of my said wife, that then the said reversion shall be and remain to my said child or children and their heirs for ever.”
    Richard Reed died in 1798 ; two of the Gordons died before him, and the other Gordon died after him and during the fife of the wife. The wife died in 1827 ; when the petitioner entered.
    
      Richard left an uncle, Moses A. Picket, his mother’s brother, and an aunt, his father’s sister. Moses A. Picket died in 1802, leaving the respondent and Sally Curtis his children.
    The petitioner, Elizabeth Dixon, is daughter of a brother of the testator, who died in the lifetime of the testator.
    It was agreed, that if the petioner was seised of an undivided part of the premises, the Court might adjudge that partition should be granted ; otherwise the petition was to be dismissed.
    The case was submitted without argument, by B. Merrill, for the petitioner, and Saltonstall, for the respondent.
    
      JVbv. 20th.
    
   Shaw C. J.

delivered the opinion of the Court. The devise to the wife, under the will of Benjamin Reed, was of a life estate ; the devise to the three Gordons, her children, was a contingent remainder, depending upon the contingency of their surviving their mother. The devise to his own child or .children and their heirs, was a vested remainder as to part, and perhaps as to the whole, subject only to the contingency of any of the Gordons surviving. Upon the death of all the Gordons in the lifetime of their mother, their interest terminated. If the estate of Richard was a vested remainder, it descended to his heirs, notwithstanding he died during the continuance of the life estate.

But whether Richard and his heirs took the whole as a vested remainder, under the last clause, or not, is now immaterial. If he did not, if the remainders were all contingent, then upon the death of the tenant for life the estate reverted to the heirs of the devisor. Richard was the only heir of the father ; the right of reversion was in him, and on his death, descended to his heirs. In either way therefore of considering it, the estate vests in the heirs of Richard, and not in any of the collateral kindred of the devisor.

Petition dismissed.  