Elkins v. Carsey ( 1886 )

Reid, Sp. J.,

delivered the- opinion of the court:

The question in this case is, where a testator devises land to two daughters, “during their natural life, and to their children, respectively, at their death,” do the children of one of the remaindermen, who died before the falling in of the life estate, take an interest in the land? We think a proper construction of the language quoted vests the remainder in the children of the life tenants, on the death of the testator, descendible to their heirs, although the ancestor may have died before the termination of the life estate. But, be this as it may, the clause immediately preceding it, by which the testator devised land to another daughter, “to her and to her children living at the time of her death,” — fhat is, devised the remainder to vest in a class :in futuro, evidences that, by the language under consideration, he intended to vest the remainder in praesenti in his grandchildren as tenants in common.

The report of the referees will be confirmed.