
    [Philadelphia,
    March 27, 1827.]
    KINSEY against LARDNER Executor of KEEN.
    CASE STATED.
    Devise to testator’s wife of the rents, &c. of two houses, and so much of lands as should remain unsold after payment of debts, &c. for the maintenance, clothing, and education of his children, to hold to his said wife during her natural life, or until [whilst] she should remain his widow, said rents for the aforesaid, and for her own support: but if she should think fit to alter her condition by marrying again, then she gave to her 60 pounds per annum during her life, and in lieu of all dower out of said rents; and at the death of his wife, or upon her second marriage, to his said children, or the survivors of them, the said houses and lands, to be divided between them by his said wife equally, share and share alike, as soon as they, or either of them, arrive at 21; vesting full power in his wife at any time to order a division of the estate so devised to his children after her death or second marriage: held, that the widow took an estate for life in trust for the purposes declared in the will, with a vested remainder to the children in fee as tenants in common.
    The following case was stated for the opinion of the Court.
    
      Reynold Keen, Esq. formerly of the city of Philadelphia, made his last will and testament, dated the 22d May, in the year 1S00, and directed, among other things, as follows:—
    
      “ I direct and order to be sold my brick messuage and tract of six acres of land in the township of Moyamensing, in the county of Philadelphia,, now in the tenui’e and occupation of Michael Miller; also my brick kitchen and lot of ground in the*district of Southwark, in the said county, now occupied by Mrs. Talbot; and as much of my lands in the counties of Somerset, Sfc. as will be amply sufficient to discharge my said debts and funeral expenses, and when sold good and legal titles to be made to the purchasers of the same by my executors and executrix hereafter named. (Then follow various specific legacies to his children.) Item, I give, devise and bequeath, to my sons Peter, Reynold, Henri
      étfa, Mary, now Mary Evans, Christiana, and Sarah, all my lands, tenements, hereditaments, and appurtenances thereunto belonging, situate, lying and being in the said township of Moyamensing, in the said county of Philadelphia, (excepting the messuage and six acres in the tenure, and occupation of Michael Miller, which I have ordered to be sold,) the same being part of their mother Christiana’s estate,- which she conveyed in fee to James Johnston, and which he the said James Johnston reconveyed to me, to hold to them my said sons Peter, Reynold, and my said daughters Henrietta, Mary, Christiana and Sarah, their heirs and assigns, to be equally divided between them my said sons and daughters, share and share alike. But it must be understood and sny will is, that unless my son Peter shall agree and give sufficient legal assurances that the part of his said mother’s unalienable real estate in the said township of Mayamensing, which he by law is entitled to two shares of, shall with him and his said brothers and sisters be equally divided, share and share alike between them— he my said son Peter shall not be entitled to such part of my estate in the said township of Mayamensing already devised to him,but that the same shall be equally divided between my said son Reynold and my daughters Henrietta, Mary, Christiana, and Sarah, their respective heirs and assigns for ever, and he my said son Peter for ever barred from any part of my said estate, except the tankard, gold head cane, and watch already given to him. Item, as to the rest and residue of my estate real, (except the right I have to about sixteen acres of cripple at Pennypack, in the county of Philadelphia, which I likewise order to be sold for the payment of my legal debts and funeral expenses as aforesaid,) I dispose of the same in the following manner, to wit:—I give, devise and bequeath to my beloved wife Jinn, all the rents, issues and profits of my house, kitchen and lot of ground in High Slreet, in the city of Philadelphia, and all the- rents, issues and profits of my dwelling-house, kitchen, stable and, lot of ground in Sixth Street, in the said city, together with the rents, issues and profits of so much of my lands in Somerset and Wayne counties, as shall remain unsold after payment of debts and funeral expenses, for the maintenance, clothing and education of my children, which she has had by me, namely, Laurence, Elisha, Elizabeth, Lucy.Ann, Jinn Le Coyte, John, Lewis and Juliana, and such other child or children of mine that may hereafter be born of my said wife Jinn—To hold to her my said wife Jinn during her natural life, or until she shall remain my widow, the said rents and profits for the aforesaid, and for her own support and maintenance.—But if my said wife Jinn shall think fit to alter her condition by marrying again, then I give to my said wife Jinn the sum of sixty pounds per annum during her life, and in lieu of all dower from my real estate, to be paid her out of the rents and profits of the before mentioned houses and lands.-—-And at the death of my said wife Ann, or upon her second marriage, I give and devise to my said children, Laurence, Elisha, Elizabeth, Lucy Ann, Ann Le Conte, John, Lewis and Juliana, and such other child or children of mine that may hereafter he born of her my said wife Ann, or the survivors of them my said children by my said wife Ann, the aforesaid house, kitchen, and lot of ground in High Street, the house, kitchen, stable, and lot. of ground in Sixth Street, and the lands in Somerset and Wayne counties, which shall be and remain unsold as aforesaid, to be divided between them my said children by my said wife Ann, equally share and share alike, and their respective heirs and assigns for ever, as soon as they, or either of them, my said children by my said wife Ann, shall have arrived at the age of twenty-one years. And'I do further vest in my said wife Ann, full power and authority, if she shall think proper, at any time to order a division of the estate so devised to my said children by her, after her death' or second marriage, before such her death or second marriage shall happen; in which case she shall then be entitled to receive 100 pounds per annum during her widowhood, or 60 pounds per annum if she marry again, as the case may be, which the estate so devised to nay-said children Laurence, Elisha, Elizabeth, Lucy Ann, Ann Le Conte, John, Lewis and Juliana, and such other child or children of rriine, that may hereafter be born of my said wife Ann, shall be security of the payment of the said suni of 100 pounds, or the said sum of 60 pounds per annum, a proportion of either sum to be fixed upon each child’s part or division of said estate.
    This will wa.s duly proved on the 30th day of August, 1800, in the Office of the Register of Wills. All the executors (except John Lardner) and the executrix, the said Ann, are dead. Laurence and Lewis died intestate, unmarried and .without issue, after the decease of the testator, and during the life of. the widow Ann. John, one of the said devisees, residing in New-York, made his last will and testament, dated on the 4th October, 1817, whereby he devised and bequeathed all the real and personal estate of which he was possessed, and to which he might be entitled according to the will of his father, the said Reynold Keen, deceased, after the death or marriage of his mother, to his sister Julian Keen, and his t.wo nephews Laurence and John, sons of his brother Elisha and their heirs for ever, and afterwards during the widow’s life died, all the remainder of the testator’s children, viz. Elisha, Elizabeth, Lucy Ann, Ann Le Conte, and Juliana are still alive.
    The house in Market Street mentioned in the will pf the said Reynold Keen, was sold for the payment of the debts of the testator, and the surplus vested in bonds and mortgages, remains in .the hands of John Lardner, the surviving executor, ready to be divided as the court shall decide.
    .The first question for the. court is whether there was such an, interest in the house and the proceeds of the sale thereof, in John Keen, as enabled him to dispose of the same by his will.
    The second question for the court is, whether there was such a right vested in John Keen as to enable him to dispose of any part of the real estate of Reynold Keen, deceased.
    
      P. «4?. Browne, for the plaintiff.
    
      John had not. a present devise, but the devise was a contingent limitation; and consequently he had nothing to transfer by his will. There must be a devisee in esse when the interest is to vest. Bret v. Rigden, Plow. 345. The insertion of the word heirs, will not strengthen the case. From the whole will, it is evident that-the intent was that the estate should not vest in the life of the widow. 1 P. Wms. 83, 84. Williams v. Davenport, 1 Ca. in Eq. 216. Tit. dev. No. 5. Smell v. Dee, 2 Salk. 415. Dyer, 59. 1 Burr. 227. 1 Atk. 500. Eq. Ca. Abr. 205. 2 Stra. 905.
    
      Tod, contra.
    
    He meant to dispose of the residue of his real estate. A devise of rents, issues and profits is a devise of the house itself. 1 Burr. 228. Hayward v. Whitby, is the very case before the court. 3 Com. Dig. 415, 16. Tit. devise, No. 2. Lease of land at 10 pound rent, a devise of the rent carries the land. • Here my position is, that this was a present devise of the house to the wife and children, for support of children. 2 Vern. 561. 2 Stra. 1020. Kerlin's Lessee v. Bull, 1 Dall. 175, is very like the present. The distinction is between legacies and devises.—The first, is governed by the civil and ecclesiastical law. 4 Bac. 394. 2 Vern. 673. 2 Vent. 342. Even a legacy bearing interest is vested. 2 Eq. Ca. Abr. 543. If any of these children had left children, it never would have been the intention of the devisor to disinherit them; yet they must be so on the construction of the plaintiff. 1 P. W. 96. 7 Bac. Abr. 471 1 Eq. Ca. Abr. 292, 393. Singer v. Phillips, 3 Burr. 1181. Rose v. Hill is exactly in point. There the court held it a vested devise. The words tenants in common could make no.difference. The words are applicable to those who survive the father. The general intention was t0 provide for his offspring, and the Court will modify all minor intents. The testator has not himself given a-construction different from mine: he only empowers the wife to accelerate the time of enjoyment.
    
      Browne, in reply.
    Here the whole property is not devised with a particular interest devised out of it. The property is not given till the mother’s death.
   The opinion of the court ('the Chief Justice having been absent at the argument, took no part in the decision,) was delivered by

Gibson, J.

The distinction between merely appointing a time for payment of a legacy, and annexing thé time to the very substance of the gift., is borrowed from the civil law: and the rule of construction which in this particular governs'in cases of légaeies, is inapplicable to devises, which are governed by the common law. But we may safely rule this cause on the authority of Goodtitle v. Whitby, (1 Burr. 228,) which is in point. There the devise was to trustees to apply'the rents and profits to the maintenance and education', of the testator’s nephews during their minority, and when, and as they should respectively attain the age of twenty-one, then to the use and behoof of the said nephews and their heirs equally: And this was held to be a present devise to the nephews, chiefly on the authority of Boraston’s Case (3 Rep. 210) which contains a rule that will be found to govern every case of the kind; namely, that where an absolute property is given, and a particular interest is given in the mean time, that circumstance shall not operate as a condition, but as a description of the time when the remainderman is to take in possession: and Lord Manseiexd remarks that this is sufficient to answer the intention of the testator, the devisee not wanting the estate in the mean time. In the case before us the devise is to the testator’s widow for life, or during widowhood, in trust to apply the rents and profils to the maintenance and education of the testator’s children, and to the suppdrt of herself; and on her death or second marriage, he devises the -premises to'the children and their .heirs respectively, share and share alike. The devise is then, in trust, for the children and the widow in the mean time: and according to Boraston’s case, this is a present devise to the children along with the widow. They are even beneficially interested in the trust, which is to apply the profits to their maintenance and education: ,and a devise of the profits is a devise of the land. (Kerry v. Derrick, Cro. Jac. 104.) It is true there is a beneficial interest given to the trustee; whereas in Goodtitle v. Whitby there was none;..but the difference is disposed of by the rule in Matthew Manning's case (8 Rep 95. b.) according to which the interest of the trustee is to be considered only as an exception out of the absolute property given to those who are the chief objects of the testator’s bounty. But what puts his intention out of all doubt is the authority given to the widow, if she shall think fit, to divide the \estate among the children in her life time, and before her second marriage. From this it is evident he intended that only the time of enjoyment should be postponed till the happening of one of the contingencies; and it is beside incredible that he should have intended to disinherit the issue of any of his children who might happen to die in the life time of the widow, and before her second marriage. The point is not new;- but cases like the present have frequently occurred in this country: as in Kerlin's Lessee v. Bull (1 Dall. 175.) Doe v Provoost, (4 Johns. 61.) and Ray v. Enslin & Ray, (2 Mass. Rep. 554.) I am of opinion- then that the- widow took an estate for life in trust for the purposes declared in the will, with •a vested remainder to the children in fee, as tenants in common: &Rd that the judgment be rendered for the defendant.

Judgment for the defendants.  