Williamson v. Williamson

| Ky. Ct. App. | Oct 6, 1857

Judge Simmon

delivered the opinion of the court.

The last will and testament of General James Taylor contains the following devise of land owned by him in Kenton county in this state:

“I direct 1,200 acres of my Bank Lick tract (ex- ‘ cept the part hereinafter devised to my daughter ‘ Jane,) be divided into four tracts or parcels, all of ‘ which shall be of equal value, as near as may be ‘ possible; and I give and bequeath unto each one of ‘ my said children one lot or tract. The tracts or lots ‘ which I give to my daughters they are to have, hold, ‘ and enjoy the rents and profits of the same for their ‘ separate and sole use during their natural lives, * and at their deaths the title to the same is to vest in their ‘ heirs in fee forever. The lot or tract which shall fall, * or be allotted to my son James, out of the said ‘ Bank Lick tract, I hereby give to him and his heirs ‘ forever:”

The testator directed the balance of the land he owned in Kenton county to be sold and disposed of, if his heirs should desire it, but if they should not wish it to be sold, it was to be equally divided among them. He had three daughters, and one son; and after his death the land referred to was divided between them, they having preferred a division to a sale of it.

At the death of the testator, Mrs. Williamson, one of his daughters, had nine living children—two of whom have since died, under the age of twenty-one, and without issue; and two-ninths of the land allot-ed to their mother in that division is claimed by their father, George T. Williamson, as their heir at law, and also by virtue of a conveyance to him of the life estate therein of his wife deeded to him by Alexander F. Willis, to whom it had been previously conveyed by his wife and himself in the year 1855.

X. The word heir, in its sirio» fcechinealsense, denotes the person on whom, at the ancestor’s decease, the law casts the inheritance. No person can properly sustain the character of heir in the life-time of the ancestor.— (Jam. on Wills, vol. 2, side page, 13.) Wherefore, a limitation to the heirs of a person in existence, (if it hare the other qualities of a remainder,) must be a contingent remainder. Fearne on Remainder, chapter 1, section 2, side page, 5.

Mrs. Williamson and her husband, in the same year, conveyed to Keturah and James T. Williamson, two of her children, two undivided ninths of the same tract of land, and this action, to which they made their father and mother and brothers and sisters defendants, was brought by them for partition of said land.

The circuit court decided that the plaintiffs were entitled to partition; that their father was entitled to two undivided ninths of the land, and directed their respective shares to be allotted to them. From that judgment the infant defendants have appealed.

The principal questions the case relate to the nature and character of the éstate devised to the testator’s grandchildren, and the power of the devisee for life to execute the deeds relied upon by the parties.

On the part of the appellants it is contended, as it regards the first question, that the devise in remainder being to the heirs of the devisee for life, and the vesting of the title being restricted by the express words of the devise to the time when the life estate should terminate, the remainder is contingent and not vested, and consequently nothing passed by descent to the father upon the death of the two children of Mrs. Williamson.

On the other side, it is contended, that the persons referred to by the testator, as the heirs of his daughters, are manifestley their children, who are the persons entitled in remainder, and that as they were capable of taking, at the time of the testator’s death, the estate in remainder vested in such of them as were then living, and in after-born children as they came in esse. It is also contended that if the word “heirs,” as employed in the will, is to be understood according to its technical meaning, still, under the settled principles of the law, the reminders were vested and not contingent.

The word “heir,” in its strict technical sense, denotes the person on whom, at the ancestor’s decease, the law casts the inheritance. Daring the life of the ancestor the heir must therefore be considered as a person either not in being or not ascertained, inasmuch as it is uncertain who will fill that character at the time of the ancestor’s death. It would seem then to follow, that a limitation to the heirs of a person in existence, if it have the other qualities of a remainder, must be a contingent remainder. And such a limitation comes precisely within Mr. Fearne’s 4th class of contingent remainders, viz: “Where the ‘ person to whom the remainder is limited is not yet ‘ ascertained, or not yet in being.” (Fearne on Remainders, chap. 1, sec. 2, side page 5.) And in Jarman on Wills, 2 vol. side page 13, the author says, “It is ‘ clear no person can properly sustain the character £ of heir in the life time of the ancestor.”

2. The principle ‘that the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent,’ (Walters, &¡c. vs. Crutcher,S;c., 15 IB. Monroe, 10,) has no application in a case where the event which renders the possession vacant also resolves the contingency upon which the limitation depends, and makes that certain which was before uncertain. (fearne on Contingent Remainder, 9.)

The principle recognized in the case of Walters &c. vs Crutcher &c., 15 B. Mon. 10, “that the present ‘ capacity of taking effect in possession, if the pos- £ session were to become vacant, and not the cer- ‘ tainty that the possession will become vacant, be£fore the estate limited in remainder determines, £ universally distinguishes a vested remainder from ‘ one that is contingent,” is strongly relied on to prove that the remainder in this case was vested and not contingent. But this principle, however general and universal it may be, has no application in a case like this, where the event which renders the possession vacant also resolves the contingency upon which the limitation depends, and makes that certain which was before uncertain. The possession becomes vacant by the death of the ancestor, and by the same event the persons who properly sustain the character of “heirs, are ascertained and rendered certain. This rule, therefore, cannot operate as a test in a case like this, where the estate in remainder is given to the heii’s of the same person, who is devisee for life. But suppose A to be devisee for life, with remainder to the heirs of B, and then apply the rule relied upon, in order to determine whether, during the life of B, the remainder would vest in his heirs, or be contingent, and it will be a fair application of the rule in an analagous case. In such a case, if the possession were to become vacant by the death of A, prior to the death of B, the estate in remainder could not take effect in possession, because during the life of B there would not be any person that could, properly and technically speaking, sustain the character of his heir, and therefore the limitation in remainder would fail, the death of B in the lifetime of A being the contingency on which it depended.

;3. The rule in Shelly’s case has no application, and is not in force in Kent’y; and whether a remainder to the heirs of a person who takes a preceding estate in freehold is vested or contingent must be determined on general principles, inasmuch as the limitation in re - mainder does not vest in the aneester,nor enlarge his estate, but his heirs take under the will as purchasers, whether their interest be vested or contingent.

One of the examples given by Fearne, under this class of contingent remainders, exemplifies the inapplicability of the rule adverted to in Walters, &c. vs Crutcher, &c., in such cases. Thus, if an estate be limited to two for life, remainder to the survivor of them in fee, the remainder is contingent, for it is uncertain who will be the survivor. (Fearne on Con. Rem. 9.)

Now in this case, during the whole time of the continuance of the life estate, the remainder could take effect, if the possession were to become vacant, by the termination of the life estate, but it would be because the event which determined the life estate resolved the contingency, and rendered that certain which was before uncertain. But the estate in remainder, notwithstanding its present capacity to take effect in possession, if the life estate were to terminate, would be contingent and not vested.

Under the .operation of the rule in Shelly’s case, limitations to the heirs of a person who took a preceding estate of freehold were exceptions to the class of contingent remainders within which they appeared literally to fall; not however because the remainder yested in the heirs, but because, in such cases, the remainder to the heirs was immediately executed in the ancestor. Therefore, under this celebrated rule, the principle was established that a remainder to the heirs of a person who took a preceding estate of freehold, never was contingent on account of any event arising from the particular estate, taking that determination singly, but if contingent at all, became so in consequence of some other contingency in the limitation. But this principle resulted from the operation of this rale alone, and consequently the doctrine to which we have been referred, in Preston on Estates, in his treatise on the rule in Shelly’s case, has no application here, where the rule is not in force; and the question, whether a remainder to the heirs of a person who takes a preceding estate of freehold is vested or contingent, must be determined on general principles, inasmuch as the limitation in remainder does not vest in the ancestor, nor enlarge his estate, but’the heirs take under the will as purchasers, whether their interest be vested or contingent. In such a case the ancestor takes nothing but a life estate, and the devisees in remainder do not take as his heirs, but take under the will— the person or persons answering this description at his death, if the term be used in its legal sense, being the devisees, and entitled to the estate in remainder.

4. Notwithstanding the maxim “nemo est hoeris viventis,” the testator who devises to the “heirs” of persons in existence may show, by other expressions in the will that he uses the word in its popular sense,as denoting children, or those who, at the execution of the will, are the apparent heirs of a particular person; in such case the lawconstrues the words in the sense intended, and the limitation is deemed as conferring a vested remainder on those designated. This principle is recogniz’d in another class of cases. (Harbison vs. Beaument, Pr. Wms. 229; Goodright v. White ,2 Black. 1010; Heard vs. Horton, IDenio’s Rep. Sup. Court N. Y. 165.)

But although the word “heir,” in its strict legal sense, denotes the person upon whom the law casts the inheritance on the decease of the ancestor, according to the maxim that nemo est hoeris viventis, yet sometimes a testator who devises to the heirs of a person in existence shows, by other expressions in the will, that he uses the word heirs in a popular sense, to denote children, or the individuals who, at the time of the execution of the will, are the apparent heirs of a particular person. When such an intention is disclosed the law will construe it in the sense intended by the testator, and the word being referred to persons, both in being and ascertained, the limitation is not deemed contingent, but confers a vested remainder on the individuals designated.

There is another class of cases in which the ancestor being recognized by the will as ■living, and «other indications appearing going to dhow that the term heir was not used in its strictest sense by the testator, it has been held to mean the heir apparent of the ancestor named. (Harbison vs Beaumont, P. Wms. 229; Goodright vs White, 2 Wm. Black, 1010; Heard vs Horton, 1 Dennio's Rep. Sup. Court N. York, 165.)

5. The signification of the word “heir,” in all cases, is a question of intention. The word has a legal and a popular meaning. When used alone, with out any other expressions going to Bhow that it wasmoi usedin its legal sense, it must be understood as having been so used.

The signification of the word heir, in all cases, is a question of intention. The word has, as we have seen, a legal and a popular meaning. When used alone by a testator, without any other expressions going to show that it was not used in its legal sense, it must be understood as having been so used by him; for the rational presumption is, that he understood the legal meaning of the words he has used. But if he use other expressions which clearly indicate what his intention was, and show that he did not mean what the word imports, in its legal acceptation, that intention must prevail, notwithstanding he has used the same word in other parts of the will.

It may be here remarked, that where the rule'in Shelly’s case is regarded as law, and has its legitimate operation, it is more important to determine the exact import of the word heir, in the sense in which it was used by the testator, than it is here, where the rule is not recognized; and where an estate for life may be devised to the ancestor, and the remainder to his heirs, who will take under the will as purchasers, whether they take as heirs according to the technical sense of the term, or as children or heirs apparent, according to its popular signification. Under the operation of the rule in Shelly’s case, the intention of the testator was frequently defeated, and it became necessary, in order to effectuate such intention, when it was manifestly indicated, to construe the word heirs to mean children, or heirs apparent. ■ But no such necessity exists here, for whether the term be understood in its legal sense, or according to its popular meaning, the same persons will take the estate in remainder as devisees, with this difference only, that in the one case the remainder will be contingent, and in the other it will generally be vested; which difference may, however, upon the happening of certain events, affect materially the ultimate devolution of the property devised, and sometimes the intention of the testator will be best promoted by construing the word in one sense, and sometimes in the other.

In the devise under consideration, if the term heirs is to be understood in its technical sense, then all the descendants of the testator’s daughter, who are living at the time of her death, whether they be her children, or her grandchildren, whose parents are dead, will come within the character and description of her heirs, and be entitled, in remainder, to the whole of the estate devised to her for life. If, however, it is to be understood in its popular sense, as referring to the children of the daughter, or her heirs apparent, and the remainder vested in them, then, as two of them have died without issue, their interest in' the estate in remainder, under our statute of descents, has vested in their father, to the exclusion of their brothers and sisters; and if, according to the provisions of the will, it did not vest in them, then if they had left issue, which had lived until the termination oí the life estate, such issue not being embraced by the terms of the devise, as thus understood, would have been excluded from any participation in it.

The whole of the will must therefore be examined, in order that the intention of the testator, which is the governing pi’inciple in the construction of such instruments, may be ascertained, as well as the sense in which he used the word in question, and also the time fixed by him, if any, at which the estate in remainder was to vest.

The following parts of the will have been relied on, as tending most directly to elucidate the questions that arise between the parties in this controversy:

1st. To establish the position that the estate in remainder according to the intention of the testator, was not to vest until the death of the tenant for life, and that the word heirs was used in its technical sense, to denote such persons as would then come under the denomination of her heirs, not only the language of the devise under consideration, but that contained in various other sections of the will—which is a very long one, and disposes of a very large estate—has been referred to.

In the second section certain property is devised to the testator’s three daughters, for their sole and exclusive use, “and at-their deaths the title to said property is to vest in their heirs in fee forever.”

Precisely the same language is used in sec. 8, in which the testator disposed of his Mercer tract of land, on the Ohio river. Also in sec. 10, in which he disposed of a farm in Union county. And in sections 11, 12,13, 15, 23, 27, and 28, in each one of which he devised a life estate in other property to his daughters or some one of them, he used the same language in substance, viz: that at the death of the mother the title to the property in which she had a life estate, was to vest in her heirs in fee forever. In three other sections the language is modified, and the property devised to the mother for life is directed, at her death, “to go to her heirs in fee forever.”

2d. On the other side, the 29th section is relied upon as explanatory of the sense in which the word heirs was used by the testator, and as tending to show, that the vesting mentioned in the foregoing sections had reference to the possession only, with which the devisees in remainder were to be invested at the time designated, and not to the interest devised. Sec. 29, is as follows: “When any of my grand-sons become ‘ of age, and when any one of my grand daughters ‘ shall marry, my daughters may divide and set off to ‘ their said son or daughters one-half of the estate or ‘ property that said grand child would be entitled to ‘ at the death of their mother; and the said property, ‘ so set off and apportioned to such child, shall vest ‘ in said child, and not subject to division when the ‘ mother dies.- The remaining half of the estate demised to my daughters during their lives, as afore- ‘ said, will go to their children in fee at their demise; ' and should any of my daughters have a child or chil- ‘ dren after any son or sons arrive at the age of twen- ‘ ty-one, or daughter or daughters marry and receive, ‘ and have divided among them the property above ‘ named, then, in that event, the child or children that ‘ may be born is to have their full portion of the es- ‘ tate given to my daughters, and it is to be taken e out of the part not divided, but which remains in ‘ my daughter’s hands until her death. The intention ‘ is that all my grand children shall have an equal ‘ share of their mother’s estate, except John Harris, ‘ who is provided for in this, my will.”

The following extracts from the will have also been referred to, among others, to show that the testator used the words heirs and children as synonymous:

Sec. 2, (of 2d codicil.) “If, however, it shall be ‘found that the foregoing plan of leasing said ground ‘ will not be advantageous and profitable to my heirs, ‘ then I empower, &c.”

And in the same section, it is said: “I hereby ‘ also direct that my daughter, Keturah Harris, is not ‘ to account to my other heirs for the 125 feet of ground ‘ given, &c.”

Sec. 35. In this section the testator gave five acres of land to a negro named Mingo, during his natural life, and directed that at his death the same was to vest in his, the testator’s, heirs. And in the same section, speaking of the devise to Mingo, he said. “At his death he is to do as he likes with the per- ‘ sonal property; the land reverts to my children.”

Sec. 16, (which relates to the ferries.) “My chil- ‘ dren are to have the rents and profits of said fer- ‘ ries during their natural lives, for their separate, ‘ sole, and exclusive use and benefit, and at their ■ ‘ deaths the same is to vest in their children. The 4 children of my son James to have our fourth part of 4 said ferries at his death.”

6. The testator’s meaning,in the use of the word “ heir,” must be gathered from all the provisions of the will considered, together. 7. The law fa-v.ors ,.that ®on‘ struction oí tu devise which ¡ntereTtTo vest* *a^erbs of time* when, &c., then, ^’express^he time when ^the take effect in vest. (Stanley Vresey“m¡ PerV‘V>S4,^i0dl,^T' wards v.Symons, Bansum’s 'case, 3Rep.19¡Fearne 240; Moore »s! Roberts, 8 Foster’sN.H. 459.) The favor shown to vested interests is not however to be so pressed as to defeat the intent of the testator. (Richardson vs. W heatland, 7 Metcalf, 171.)

It is perfectly manifest, from these extracts, and other parts of the will, that the testator, in reference to his own children, regarded them as his heirs, and used the words children and heirs as meaning the same persons. And with respect to his grand children, there can be no doubt that he regarded them as the heirs of their mothers; but whether the term heirs, which he used so frequently in creating the remainders which were to take effect after the death of his daughters, should be understood as meaning their children, and have that sense placed upon it, or should be taken in its legal sense, must depend in a great degree upon the question, which meaning of the word would be most consistent with and best calculated to advance the general intention of the testator, to be collected from all the provisions of his will considered together.

The law favors that construction- of a devise which will cause the interest to vest, and not to be contingent. It has therefore been held, that the adverbs of time, “when, &c.,” “then, &c.,” do notmake any thing necessary to precede the vesting of the remainder in real estate, but only express the time when the remainder shall take effect in possession, and not when it shall become vested. (Stanley vs. Stanley, 16 Vesey, 491; Perrin vs. Lyon, &c. 9, East. 170; Edwards vs. Symons, 6 Taunt. 213; Baraston’s case, 3 Rep. 19.)

The same principle is recognized by Fearne in his work on Contingent Remainders, {page 240,) where he says: “It sometimes happens that a remainder is 4 limited in words which seem to import a contingen4 cy, though in fact they mean no more than would 4 have been implied without them, or do not amount 4 to a condition precedent, but only denote the 4 time when the remainder is to vest in possession.”

8. The words used by the testator,in creating the remainder, viz: ‘and at tlmr deaths the title to the same is to vest in their heirs in fee f o r e v er,’ show clearly that the testator intended so to limit the remainders given after the life estate to his daughters, that they should not vest until their deaths, respectively.

One of the examples given in illustration of this principle is the case of a devise to A for life, and afterwards to his first, second, third, and fourth sons in tail; and if the fourth son should die without issue, then to B; this was held to be a remainder vested in B.

The decision of the cases of Moore vs. Lyons, 25 Wend. 119; Teaton vs. Roberts, 8 Foster’s N. H. 459, as well as the above mentioned cases, and others to which we have been referred, was governed by the rule of construction, which interprets words that seemingly import a contingency, and the creation of a future interest as referring merely to the futurity of the possession, and not as designed to postpone the vesting. But in all these cases the words so interpreted, although seemingly creative of a future interest, were so used as not to have a certain and precise meaning, and were therefore interpreted in connection with the context and the subject of the devise, so as to favor the vesting of the estate devised.

The favor shown to vested interests is not however to be so pressed as to defeat the intent of the testator. (Richardson vs. Wheatland, 7 Metcalf, 171.)

This rule of construction is, therefore, excluded by an express declaration in a will, that the ulterior devisee shall take a vested interest at the period referred to, as such a declaration obviously carries with it an implied negation of an earlier period of vesting. ( 1 Jarman on Wills, 742, and the case of Glanvill vs. Glanvill, referred to by him.)

Now the peculiar terms in which the remainder in question, and many of the others are created, show clearly that the testator intended so to limit the remainders given after the life estate to his daughters, that they should not vest until their deaths respectively. The language he uses is clear and explicit: “And at their deaths the title to the same is to vest in their heirs in fee forever;” that is, at the death of his daughters the title to the same property which he devised to them, was to vest in their heirs. There is here clearly a certain time fixed, when the title to the property—shall vest in those entitled in remainder. The vesting referred to cannot be confined to the possession, because it is expressly stated that the title to the property shall then vest. If, therefore, the title is to vest in the heirs at the death of the mother, it cannot have vested previous to that time; for, as said in the case abSve referred to of Glanvill vs. Glanvill, there cannot be two periods of vesting, and by fixing one, the testator must be taken to have excluded the other.

9. It is incumbent on those seeking to attach a meaning to the language used by the testator, different from its natural & literal meaning, to exhibit solid and satisfactory reasons, drawn from the subject, matter, purposes,objects or context of the devise or provisions of the will, in support of such construction.

It is certainly incumbent on those who contend that the language of the testator is not to be understood according to its natural and literal meaning, to exhibit some solid and satisfactory reasons, drawn from the subject matter of the devise, or its purposes and objects, the context, or from other provisions of the will, showing that the words employed in this clause are not to be understood in their clear, plain, and literal signification.

The only reason urged why it should not be so understood is, that the word vest is used by the testator in some of the clauses in his will, where it is uncertain whether it refers to the title or to the possession of the property devised, and as in such cases it will according to the well established rules of construction, be regarded as only expressing the time when the remainder shall take effect in possession, and not when it shall become vested, it should also be regarded as having been invariably used by the testator in the same sense.

But, as in the clause under consideration he has not left his meaning uncertain, but has expressly declared that the title shall not vest in the devisees in remainder until the expiration of the life estate, it is impossible, according to any reasonable rule of construction, so to restrict the meaning of the language used as to make it apply to the possession and not to the title of the property devised, especially as the testator has used precisely the same form of expression in a large majority of the devises contained in his will. It might indeed be argued, with much more plausibility, that as he had thus in numerous instances, furnished a clear indication of his intention asto the time when the estates in remainder were to vest, that such intention should govern and control all those devises in which the language used left it uncertain when or at what timé the title was to ve%t.

To show that the testator intended the estate in remainder to vest during the continuance of the life estate, that part of the 29th section of the will has been relied upon which provides, that when any of his grand sons became of age, and when any one of his grand daughters should marry, his daughters might divide and set off to their said son or daughter one-half of the estate or property that said grand child would be entitled to at the death of their mother; and the said property, so set off and apportioned to such child, should vest in said child, and not be subject to division when the mother died.

This provision proves most clearly the persons to whom the property devised to the daughters for life was to go after their death, but it does not prove when the title to the estate in remainder was to vest. Nor is it apparent, as contended, that the testatorhas in this section used the word “vest’ as merely relating to the possession of the land—not the vesting of the title. For, as according to the previous provisions of his will, the estate in remainder was not to vest until the termination of the life estate, the rational construction of this clause of the will is, that the title, as well as the possession of that part of the property thus laid off should vest during the lifetime of the mother. The argument by which • it is attempted to prove that the word vest, as used in this clause in the will relates exclusively to the possession, is that the child only derives the possession from the mother, and the vesting alluded to can therefore refer only to that which is conferred by her act; and from this position it is assumed that the title to the property must have been in the child by the previous provision of the will. The fallacy of this argument consists in the assumption that whatever right to the property the child acquires under this provision of the will is derived from the mother. This, however, is an evident mistake. The right is conferred by the will,- although the act of the mother is necessary to its enjoyment. The legal effect of the devise is, that the child is to have the property upon the condition that the mother shall, designate it, and surrender her life estate therein' to. the devisee. The right is derived from the will; the act of the mother only gives effect to the devise. If, therefore, the devisee under this provision of the will acquires a title to the property, the testator must have used the word “vest,” in relation to the title as well as to the possession.

There is nothing, therefore, in the 29th section of the will, which even tends to prove that the testator, when he declared that at the death of his daughters the title to the property which was devised to them for life should vest in their heirs in fee forever, did not mean what he said, or that he intended the title to vest, not at the time specified, but immediately upon his own death. Indeed, the rational deduction from the provisions of this section is, that he had expressed his meaning fully, and understanding that no right or title to the property would vest in the persons entitled in remainder, until the termination of the life estate, he made a conditional provision for them, which was to have effect in the meantime, and which was rendered more necessary on account of the contingent character of the estate in remainder which was devised to them.

In the 20th, 21 si, and 23rd sections of the will, the testator’s daughters were authorized and empowered to exchange lands with each other, or with their brother, James Taylor; also, with the advice of the executor, to exchange the lands in Ohio, and some land in Kentucky, which was specifically designated, should they prove unproductive, for productive property in Cincinnati, Covington, or Newport; and by the 23rd section, the executor was authorized to exchange any of testator’s lands in Kentucky, Ohio or Indiana for productive property in either of the above named cities. These powers might be exercised with respect to any lands devised to the daughters for life, with remainder to their heirs, and at any time before the death of the daughters. Their creation tends to prove that the testator did not intend to give to the devisees in remainder a vested estate until after the death of his daughters. For although the exercise of these powers might not to be wholly inconsistent with the existence of such a vested interest, yet it would, if the interests were vested, certainly be attended with much inconvenience and confusion, which it was desirable to avoid. The interests, if vested, would be subject to be divested by the exercise of the power; and as the power was created, it was manifestly proper that the estate in remainder should not vest during the time that it might be exercised. This may have been, and probably was, one reason why the testator fixed the death of his daughters as the time when the interests in remainder should vest.

Considering, therefore, the language used by the testator, the subject matter of the devise, the context, and his purposes and obj ect as evinced by the other provisions of his will, we think there is not only an entire absence of any indication that he did not use the words referred to in their plain and literal signification, but on the contrary there is intrinsic and satisfactory evidence that he did so use them. Consequently the interest in remainder in the devise under consideration is contingent, and will not vest until the termination of the particular estate.

As already remarked, there can be no doubt that the testator regarded the children of his daughters as their heirs, and there can be as little doubt that he regarded the children of any such of their children as might die in their mother’s lifetime in the same light. Hence he used the comprehensive term heirs, by which he embraced all the descendants of his daughters. Having determined that the estate in remainder should not vest until the death of the mother, the use of the words her children, in the devise, would not have accomplished his object, because it might not have included her grandchildren whose parent was dead, and therefore he used the words her heirs, the appropriate words to convey his meaning, and to carry his intention into complete effect. When the mother dies her living children, and the descendants of such of them as may have died in her lifetime, constitute her heirs at law. They are the devisees in remainder, and take as such under the will, and not by descent from their mother. They are termed her heirs to point out and designate the persons who are to take as devisees, and not for any other purpose. The testator intended that the persons who were her heirs should have the same property at her death that he devised to her for life, except so far as that disposition of his estate might be modified by the operation of the 29th section of his will. He so expressed himself in various parts of the will, so that there can be no doubt but that such was his intention. To secure the accomplishment of this object he postponed the vesting of the estate in remainder, until the death of his daughter, because, if it vested in her lifetime, his intention might be defeated, and her heirs, instead of getting the same property which was devised to her for life, might only get a part of it. We thus ascertain that every object which the testator seems to have had in view will be best promoted by giving to the language he has used its legal and appropriate signification.

But it is said that this court has decided in the case of Ward, &c. vs Tibbatts, 10 B. Monroe, 473, that the word heirs in this will means children, and that the children of the daughters had a vested interest in the estate under some of the devises contained in the will. In that case, it was conceded, as it is in this one, that the testator regarded the children of his daughters as their heirs, and that they were referred to as such. The court however expressly declined deciding the question whether the interest of the grandchildren was vested or contingent, although the opinion was expressed that they took a vested interest under the devise contained in the 16th section of the will, in the profits of the ferries. As however that is a devise of the profits of the ferries to the testator’s children during their natural lives, and at their death to their children, and not to their heirs, as in the devise under consideration, that opinion cannot affect the construction of those devises in which the word heirs and not children is used by the testator. But the question in that case was the right of the grandchildren to prosecute a writ of error to the decision of the court rejecting the will, and the court said it was by no means certain that they should not be considered as having such an interest in the establishment of the will as would authorize them to do it, even though they had no vested interest in the estate itself. And as it was not a suit for property, but a proceeding to establish a will, and the question was not as to the extent of the interest of the plaintiffs in the writ, but as to the existence of any interest, it was not deemed proper or necessary to go into the general question as to the construction and effect of the devises contained in the will. That case, therefore, merely decided that they had such an interest under the will as authorized them to insist on its establishment, and the question presented therein would not have justified the court in undertaking to define or determine either the nature or extent of that interest. We do not therefore consider the decision in that case as settling any of the questions that arise in this, or as precluding us from adjudicating upon them as if they had been now presented for the first time.

10. The case of Ward, SfC. vs. Tibbatts, 10 B. Monroe, 473, is decisive of none of the questions arising in this case. 11. A devise of the rents and profits of land for the separate and sole use of the devisee during her natural liie, is in substance and effect an appropriation of the land itself, and is a separate estate embraced by the provisions of the Revised Statutes, 395, which the devisee has no power to convey except in the manner therein prescribed. Hop-son vs. Burks, Sfc. ante; Daniel v. Robinson,ante,

We are therefore of the opinion that under this devise all those persons who come within the description of heirs of the mother, at the time of her death, will be entitled to the estate in remainder.

Our next inquiry will be directed to the legal effect and validity of the deeds which were executed by Mrs. Williamson and her husband.

The Revised Statutes, (page 395,) provides, that estates for the separate use of a married woman, created before their adoption, shall not be sold or encumbered but by order of a court of equity, and only for the purpose of exchange and reinvestment, for the same use as that of the original conveyance or devise.

It is contended, that under this provision of the Revised Statutes, these deeds are wholly invalid and inoperative. On the other side it is argued, that the devise to Mrs. Williamson not only invests her with a separate estate in the rents and profits of the land during her life, but also with the absolute title thereto during the same time, and that therefore the estate devised to her is not embraced by the statutory provisions referred to, and if it be, that the legislasure had no power to deprive her of the right to convey and dispose of it at her own discretion.

The language of the devise is, “I give and be-1 queath unto each one of my said children one lot ‘ or tract. The tracts or lots, which I give to my ‘ daughters they are to have hold, and enjoy the rents * and profits of the same for their separate and sole use ‘ during their natural lives.” The manner in which the testator’s daughters are to hold and enjoy the land devised is clearly defined, and there is no foundation whatever for the distinction attempted to be drawn between the land itself and it issues and profits. There is but one estate created by the devise and that is in the land for the sole and separate use of the devisees during their natural lives. The appropriation of the issues and profits is in substance and effect an appropriation of >the land itself The estate devised to Mrs. Williamson is, therefore, a separate estate, and expressly embraced by the statute.

12. The mode of the translation of property from one individual to another is a matter of legislative regulation. The provisions .of the Revised Statutes, chapter 44, art. 4, sec. 17, deprives married women of no rights in their separate estate, and there is no doubt of the power of the legislature to enact such a law.

In the case of Hopson vs Burks, &c., (:manuscript opinion,) decided at the last term of this court; it was held that a married woman had no power, since the Revised Statutes took effect, to convey her separate estate except in the manner therein prescribed. In that case, it is true, the power of the legislature to prescribe the manner in which married women might dispose of the separate estate which belonged to them was assumed to exist, and not being doubted or questioned was not considered nor expressly decided.

The mode of the translation of property from one individual to another is a matter of legislative regulation. The title to personal property now passes under a verbal contract. Could not the legislature provide that it should not pass except by a written conveyance? Such a law could not be made to operate upon past sales and transfers, for then it would affect vested rights; but certainly it would be no objection to its validity, that the persons who owned such property at the time of its passage were deprived of the right of transferring it by a verbal contract.

Married women can now convey their real estate, in conjunction with their husbands, by the acknowledgment of a deed before the clerk of the county court. Suppose the legislature should pass an act requiring such deeds to be acknowledged in open court, to make them valid, would such an act be an infringement of any right, or could the power of the legislature to pass it be questioned?

Before the adoption of the Revised Statutes Mrs. Williamson, although a married woman, had the power to alienate and convey her separate estate, at least such a conveyance was to some extent sustained in a court of equity. It was a power however which was frequently inconsistent with the nature and terms of her estate, and by the exercise of which the instrument creating the estate was disregarded and violated.

Now this provision in the Revised Statutes was enacted not only to protect the rights of married women, by securing their separate estates against their own improvidence, as well as all improper influences which might be attempted to be exercised over them, but also more effectually to secure the attainment of the object of the donor in their creation. Instead of depriving married women of any of their rights in their separate estate, it tends to secure them in the possession and enjoyment of them. The power to \iolate the instrument creating her estate, and to make a disposition of the property embraced by it inconsistent with and calculated to defeat the evident intention of the donor in making her the object of his bounty, cannot be regarded as such a vested right in a married woman as to place it beyond legislative control or regulation. Indeed, the existence of such a power was only recognized in a court of equity, and the propriety of permitting its exercise, unless it was expressly conferred by the instrument which created the estate, has been frequently questioned by the most enlightened chancellors.

Married women can still sell and convey their separate estate, but it must be done under the superintendence of a court of equity, and the proceeds must be reinvested for the same use as that contained.in the conveyance or devise by which the estate was originally created. The mode in which the sale and conveyance are to be made is varied, but the charge is entirely consistent with the nature of the estate, and its operation is evidently advantageous to the owners of such property, by securing them in the continued enjoyment of it. As the proceeds, if a sale be made, are required to be reinvested for the separate use of the .wife, she is thereby guarded against that influence to which her condition naturally subjects her, and which it is almost impossible for her to resist, by the withdrawal of all temptation for its exercise. There can be no doubt of the power of the legislature to enact such a law, and consequently the deeds made by Mrs. Williamson and her husband, disposing of her separate estate, having been executed since the Revised Statutes took effect, are wholly invalid and inoperative. Since the change in the law a married woman has no power to charge or encumber or dispose of her separate estate for any purpose whatever, in any other mode than in that prescribed by the statute. (Daniel vs. Robinson, ante 301.)

13. The act of 1856, (vol. 1,ses-sion acís,1855-6, page 58,) provides that the provisions of the Revised Statutes, chap. 44, art. 4, sec. 17, shall not apply to conveyances made before the passage of the Revised Stat., in which powers of sale and . exchange were expressly-given, but such powers may be executed according -to the intention of the instrument.

By an act of the legislature, passed in 1856, {vol. 1, ses. acts 1855-6, page 58,) it was enacted that these provisions of the Revised Statutes should not apply to conveyances made before their passage, in which powers of sale and exchange were expressly given, but such powers might be executed according to the intention of the instrument.

There can be no doubt, therefore, of the right of Mrs. Williamson to exercise the power conferred upon her by the 29th sec., or any other part of the will according to the intention of the testator. The deed however which was made by her and her husband to two of her children was not made in pursuance of, or in conformity with, the provisions of the will, and was consequently unauthorized and invalid. It purported to convey to each of the children the life estate of their mother in their part of the Bank Lick tract of land, and was made upon the assumption that she had a right to convey and dispose of her life estate as she deemed proper, without any regard to the provisions of the will, It was not made for the purpose of executing the power conferred upon her by the 29th section of the will, nor did it operate to vest the children with such an interest in the property embraced by it as they are entitled to under that section.

Inasmuch, therefore, as their mother’s deed conferred no right on the plaintiffs, and their interest in remainder is contingent, they were not in a condition to maintain an action for partition of the land.

And as the deed to George T. Williamson did not invest him with any title, and he did not acquire any by the death of his two children, they not having a vested interest in the land, he had no right to partition, and the judgment in his favor, as well as that which was rendered for the plaintiffs, is erroneous.

Wherefore, the judgment is reversed, and cause remanded, with directions to dismiss the plaintiffs petition and to render a judgment against the claim asserted by the defendant, George T. Williamson.