
    ESTATE TAKEN BY WAY OF CONTINGENT REMAINDER.
    Circuit Court of Franklin County.
    Benjamin F. Lisle v. Mary A. Miller et al.
    Decided, April 2, 1912.
    
      Wills — Word “Heirs” Used in the Ordinary Sense — Estate Did Not Vest in Remainder Upon the Death of the Testator — -But Was Contingent Until the “Heirs” Were Ascertained by the Death of the Life Tenant.
    
    Under a will bequeathing to “my youngest son, H L, the farm that I now live on, to have and hold the same during life, then to go to his heirs,” a grantee of one of the heirs took no interest in the land capable of being asserted, where the death of his grantor occurred before the. estate took effect.
    
      M. B. Barnhart, for plaintiff in error.
    
      Ivor Hughes, W. 8. Page and L. W. Jones, contra.
    Allread, J.; Dustin, J., and Ferneding, J., concur.
   This action involves a construction of the following item of the will of Robert Lisle, deceased:

“Item IX. I will to my youngest son, Iiarvey Lisle, the farm that I now live on, to have and to hold the same during life, then to go to his heirs.”

The testator died in 1862. The son, Harvey, died August 10, 1910. Harvey had eight children, seven of whom survive him.

Robert.John, one of the sons, died June 26, 1910, after having conveyed his interest by deed to Mary A. Miller.

The controversy is between the grantee, Mary A. Miller, and the surviving children of Harvey over the interest of Robert John.-

The grantee contends that a vested interest in remainder was conferred by the will upon the children of Harvey, while the surviving children contend that the interest created in favor of the heirs was contingent and did not vest until the death of Harvey. The case of Linton v. Laycock, 33 O. S., 128, and Bonnell v. Evans, 26 O. S., 449, are cited in favor of the former, while Barr v. Denny, 79 O. S., 358, is cited to sustain the latter contention.

These cases are not exactly parallel to the ease at bar and are important only for the rules of construction announced.

The question is one of testamentary intention to be solved by a careful analysis of the terms employed in the light of established rules of construction.

The case of Bonnell v. Evans holds that the term “heirs,” in view of the context, wa,s intended to signify children. In the case of Linton v. Laycock, the devise was expressly to the testator’s children then living or their heirs. The court there, in view of the context, construed the devise to the children as vested at the time of the testator’s death, and that the fact that, they were to have the estate when the youngest child became of age related merely to the enjoyment. This construction was arrived at from a full consideration of the whole will.

These eases do not hold that the word “heirs” ex vi termini should be construed as meaning children or in any other than its ordinary and technical sense.

Upon a careful reading, and full consideration "of the will in controversy, we find nothing reflecting an intention to use the term "heirs” in any other than its ordinary sense.

This devise is, therefore, one falling strictly under the common law rule of Shelly’s case. This rule was adopted under the influence of the feudal system in order to vest the inheritance in someone capable of performing feudal service and the life estate was, therefore, enlarged into a fee simple.

In order to afford a rule more in harmony with testamentary intention, the rule in Shelly’s ease has been superseded by the following statute:

"Section 5968. When lands, tenements, or hereditaments are given by will, to any person for his life, and after his death to his heirs in fee, or by words in that effect, the conveyance shall be construed to vest an estate for life only, in such first taker, and a remainder in fee simple in his heirs.”

Under this statute the term "heirs” is no longer regarded in cases falling within its provisions as one of limitation but becomes one of purchase. The "heirs” take not from the first donee but as devisees under the will. The term "heirs” as employed in the will is therefore mere designatio personarum.

This brings ns to thé main and controlling question. Rid the estate devised to the "heirs” of Iiarvey vest an estate in remainder upon the death of the testator or was it contingent until the “heirs” were ascertained by Harvey’s death?

Two conflicting rules of construction are brought in. It is contended, upon the one hand, that the rule favoring vested interests should control in defining and applying the term "heirs” and, on the other hand, it is asserted that the doctrine of nemo est haeres vivenlis is applicable and that the remainder is, therefore, contingent.

We are unable to find that this exact question has been decided in this state.

In Massachusetts, under an early statute, it was announced in Bowers v. Porter, 4 Pick., 198, that a vested remainder was created in those’persons answering the description of heirs at the time of the testator’s death. This was followed by the opinion in Richardson v. Wheatland, 7 Metcalf, 169, holding that the heirs took by way of contingent remainder.

The direct question, arose under a statute of which ours is a copy in the case of Putnam v. Gleason, 99 Mass., 454, where it was held that the heirs took by way of contingent remainder. In the opinion it is said by Foster, J., that:

“Undoubtedly the law favors vested rather than contingent remainders; but not to the extent of disregarding the intent of the testator, or rejecting the natural import of the language he has used. ’ ’

The case of Putnam v. Gleason has become the settled law of Massachusetts. Putnam v. Story, 132 Mass., 205; Lavery v. Egan, 143 Mass., 389.

The Massachusetts rule of construction is adopted in: Sanborn v. Sanborn, 62 N. H., 631; Hunt v. Hall, 37 Maine, 365; Read v. Fogg, 680 Maine, 479; Williams v. Williams, 57 Tenn., 566.

In New York state (Moore v. Littel, 41 N. Y., 66) the rule is adopted that the heirs take a vested contingent remainder) Under this rule the devise opens up to admit after-born children and is defeated as to aiw interest by death before the estate takes effect in possession.

The construction adopted in Massachusetts seems to be in harmony with many of the expressions in the opinion in Barr v. Denny, and is supported, we think, by the weight of authority.

The grantee of Robert John Lisle in our opinion took, therefore, no interest under the will in controversy capable of being asserted in view of the death of his grantor before the estate took effect.

Upon examination of the record of the court of common pleas we find that there is no final judgment. The court overruled a demurrer to the answer and cross-petition of'Mary A. Miller. The case is, therefore, still pending in the court of common pleas. As the case stands this court has no jurisdiction to entertain a petition in error, and it must be dismissed. We have, however, expressed the opinion of this court upon the questions involved for the benefit of counsel and the court in the further progress of the case.  