"The plaintiffs, who are the children of Regina Gadsden, deceased, —a daughter of the late Osmund Woodward, deceased, — bring this action to recover from the defendant Ulysse G. Desportes the possession of one undivided one-fourth of a certain tract or parcel of land, containing eight hundred and forty-eight acres, situated in the county and state aforesaid, and particularly described in the complaint, and for other relief. The defendant Ulysse G. Desportes, by his answer, admits that he is in the exclusive possession of said land, and is receiving the rents and profits therefrom, and denies that the plaintiffs are entitled to an undivided one-fourth interest therein, under the will of Osmund Woodward, deceased, and that his codefendants are interested in said lands as contingent remainder-men, under said will, but on the contrary avers that he has a title to said lands by, from, and under the purchase of the same at the sale thereof for partition under the suit referred to in the fifth paragraph of the said complaint, and as a further defense sets up a claim for improvements made to said land. The other defendants, who are the grandchildren and great-grandchildren of the late Osmund Woodward, deceased, do not contest the claim of the plaintiffs to an undivided interest in said land, or their right to recover the same. A jury trial having been waived, the case was heard by me at the June, 1892, term of the court of common pleas, on the pleadings and testimony taken and reported by W. D. Douglass, Esq., special referee. Full argument was had on all the issues raised in the cause. The facts established by the evidence, which are necessary to be stated, and about which there is no dispute, areas follows: Osmund Woodward, late of the county of Fairfield, in the state aforesaid, in and by his last will and testament, in writing, bearing date the 25th day of March) 1854, among other things, devised and bequeathed certain real and personal property to his five daughters, as follows: 'Item 4. I will and direct that all the rest and residue and remainder of my estate, both real and personal, of every kind and description, including all the lands and all the negro slaves, and their increase, which may be in possession of my children at the time of my decease, as a loan from me, be divided by my executors into five equal
parts or portions, one of which I give, devise, and bequeath to each of my daughters, namely, Jemima Harrison, Sarah Owens, Amanda Heath, Rebecca Buchanan, and Regina Woodward, for and during the term of her natural life, to and for her sole and separate use, benefit, and behoof, and in no wise to be subject or liable to the debts, contracts, or incumbrances of any husband, and at her death to the issue of her body who may be then living. In case either of my daughters shall die without leaving issue of her body then living, all the property above given and devised or bequeathed to her, except as hereinafter particularly specified, shall be equally divided among her surviving sisters, to and for their sole and separate use, benefit, and behoof, respectively, for and during the term of their natural lives, respectively, precisely, in all respects, as the original share or portion above devised and bequeathed to them, respectively, and, at their several and respective deaths, to the issue of their bodies who may be then living. In all contingencies which may arise under this will, the issue of a deceased daughter, if any such, shall represent the parent, and take the share which the parent would have been entitled to if living. In case either of my daughters shall die in my lifetime, without leaving issue living at the time of my decease, the share or portion above devised and bequeathed to her shall fall into the general residue of my estate, and augment ratably the shares or portions of my surviving children, the number of shares or portions in that case being less.' The said testator died some time in the year 1862, leaving of force his said last will and testament, and seised and possessed of a large real and personal estate. The said will was duly admitted to probate. On the 11th day of December, 1863, the qualified executors divided the real estate among the five daughters of testator, pursuant to the direction of his said will. In said division there was allotted to the said Jemima Harrison the tract or parcel of land described in the complaint herein. Jemima Harrison departed this life in the year 1865, without leaving issue of her body then living. On the 10th day of September, 1869, John R. Cook and Sarah Cook, his wife, commenced their action in the court of equity for said county against Lncy A. Mobley, R. A. Buchanan, and Rebecca Buchanan, his wife, and Regina Gadsden, for partition of the Harrison tract of land. To this action the plaintiffs herein were not made parties, though in esse, and within the jurisdiction of the court. Under a decree made in the said cause the Harrison tract was sold by the sheriff of said county on the first Monday in Decemher, 1869, to Lucy A. Mobley. She complied with the terms of the sale, received a conveyance, and the sale was confirmed by the court. By various legal transfers the title to said lands came to Martha L. C. Desportes, who, on the 3d day of October, 1883, for valuable consideration, conveyed the said lands to Ulysse G. Desportes, the defendant herein, by deed with general warranty. Under this deed the said defendant entered into the possession of the said premises, andhas ever since remained in the possession thereof, using the said lands as his own, and receiving and enjoying the rents, issues, and profits derived therefrom. Re-gina Gadsden, the mother of the plaintiffs herein, died on the 23d day of February, 1891, and the present action was commenced on the 25th day of April, 1891. The rental value of the said lands is $400 per annum. The parties claim through a common source, to wit, Osmund Woodward, deceased. If, therefore, the sale under the decree in Cook vs. Mobley passed a good and valid title in fee to the purchaser, then the defendant Ulysse G. Desportes would undoubtedly prevail in this action, for his paper title is complete and perfect. So, the main question for consideration is, what estate did Mrs. Harrison take in the land devised to her under the will of her father?
"It is contended for the defendant Ulysse G. Desportes that she took a fee conditional at common law, by force of the rule in Shelley's Case; that the limitation 'to the lawful issue of her body' served only to enlarge the estate devised to her to a fee conditional at common law, and did not create a remainder to the issue as purchasers. On the other hand, it is contended that the rule in Shelley's Case does not apply, and that Mrs. Harrison took an estate for life, only, with contingent remainder to her issue. The contention of the defendant Ulysse G. Desportes cannot, in my opinion, prevail. I do not think that the rule in Shelley's Case applies to the devise in question. After a careful study of the will of testator, and the words employed, in the light of well-established principles of law, the intention of the testator seems clear. He did not intend that the issue of Jemima Harrison should take the estate in remainder absolutely, and at all events, but only on a contingency, —that of their surviving her. Neither did he intend that the surviving sisters should take the estate absolutely, and at all events, but only on a contingency, —that of Jemima Harrison's dying without leaving issue living at the time of her death. It is clear to my mind that the remainders created by the will of Osmund Woodward, deceased, are contingent, and not vested, remainders. A contingent remainder, says Mr. Blackstone, is 'an estate in remainder, limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event.' This definition is fulfilled when the devise in question is carefully considered. The limitation here is not to the issue generally, as a class, but to such as should be living at the time of the death of the daughters. The persons who are to take on the death of the daughters are uncertain. I therefore hold that Jemima Harrison took a life estate in the lands devised to her, with contingent remainder to the lawful issue of her body living at...
