The opinion of the court was delivered by
It is apparent from the will that the testator had other heirs besides Catharine and Dorothea, and therefore the remainder, after the life estates, is not devised according to the law of descents, and there can be no question that the daughters took only life estates. What then did their children take ? Very evidently, vested remainders in fee, conditioned on their surviving their mothers, or leaving issue surviving them; for the rules of law require a vesting so soon as there is any one in existence that can take. And the estate having become vested, will not be defeated upon any doubtful implication or condition; and all the evidence in the will and in the nature of the case is against declaring it defeated in this instance. True, the devise is to such “ children” as his daughter should have living at her death, and to their heirs; but this is explained by the alternative devise over if she should die without leaving “issue” living at her death; and grandchildren are issue and may take. This interpretation is so accordant with our law of descents and custom of devising, that we cannot avoid adopting it. There can be no fair pretence that the plaintiffs are estopped by the deed of their grandparents from making this claim.
Judgment affirmed.