
73 U.S. 458 (____)
6 Wall. 458
DOE, LESSEE OF POOR,
v.
CONSIDINE.
Supreme Court of United States.

*462 Messrs. T. Ewing and H.H. Hunter, for the plaintiffs in error.
Messrs. Stanbery and H.H. Lincoln, contra.
*469 Mr. Justice SWAYNE delivered the opinion of the court.
I. At the threshold of the subject before us, the inquiry arises as to the extent of the trust estate vested by the will in the three sons-in-law of the testator.
The determination of this point is not vital in the case; for whether they took the legal fee or not, and whether the estate of Mary Jane Barr was legal or equitable in its character, the result must be the same. The same rules of law apply to descents and devises of both classes of estates; and *470 if in this case an equitable fee in remainder was vested in Mary Jane Barr at the time of her death, while the legal fee as a dry trust was held by the sons-in-law, those holding the latter title could not recover in this action against parties clothed with the equitable estate, and entitled to the entire beneficial use of the property.[*] But we entertain no doubt upon the subject.
The devise contains words of inheritance. It is to the trustees "and to their heirs." This language, if unqualified by anything else in the clause, would pass the fee. But when we look to the purposes of the trust, and the power and duties of the trustees, we find them limited to two objects:
1. The trustees were to permit John M. Barr to enjoy the premises and receive the rents, issues and profits during his life.
2. If John M. Barr should die, leaving issue, and his wife Maria should survive him, then they were to permit her, during her life, to enjoy the possession and profits of the property.
A drier trust could not have been created. The duties of the trustees were wholly passive. They were authorized to do no act. They were simply to hold the estate committed to them until one or both the events defining the boundary of its existence had occurred. It was to subsist in any event during the life of John M. Barr, and if he died, leaving issue, and his wife survived him, it was to subsist also during her life. The executors were directed, in any event, to make an expenditure upon the property, and to take the fund from the personal estate. This duty had no connection with the trust, and its bearing upon the case is in nowise affected by the fact that the executors and trustees happened to be the same persons. Whether John M. Barr died with or without issue, the entire object of the trust was fulfilled, and its functions were exhausted when the persons for whose benefit it *471 was created ceased to live. "The remainder of the estate in said farm," in the language of the testator, thereupon passed according to the provisions of the will. It is neither expressed nor implied that the trust estate should exist any longer, and no imaginable purpose could be subserved by its longer continuance. When a trust has been created, it is to be held large enough to enable the trustee to accomplish the objects of its creation. If a fee simple estate be necessary, it will be held to exist though no words of limitation be found in the instrument by which the title was passed to the trustee, and the estate created. On the other hand, it is equally well settled that where no intention to the contrary appears, the language used in creating the estate will be limited and restrained to the purposes of its creation. And when they are satisfied, the estate of the trustee ceases to exist, and his title becomes extinct. The extent and duration of the estate are measured by the objects of its creation.
Jarman says:[*] "Trustees take exactly the estate which the purposes of the trust require; and the question is not whether the testator has used words of limitation, or expressions adequate to carry an estate of inheritance, but whether the exigencies of the trust demand the fee simple, or can be satisfied by any and what, less estate."
Chancellor Kent says: "The general rule is that a trust estate is not to continue beyond the period required by the purposes of the trust; and notwithstanding the devise to the trustees and their heirs, they take only a chattel interest where the trust does not require an estate of higher quality."[]
This doctrine rests upon a solid foundation of reason and authority, irrespective of the presence or absence of the statute of uses. The consequences in this case of the absence of such a statute in Ohio, it is therefore not necessary to consider.
*472 We are of opinion that the trust estate of the sons-in-law of the testator was only an estate par autre vie, and that it terminated at the death of Maria Barr.
II. This brings us to the consideration of the question, what was the estate, in quantity and quality, of Mary Jane Barr at the time of her decease?
The hinge upon which turns this part of the controversy is the following language of the will:
"And upon the decease of the said Maria Barr, wife of the said John M. Barr, in case she survive him; if not, then upon the decease of the said John M. Barr, I do further give and devise the remainder of my estate in said farm unto the legitimate child or children of the said John M. Barr, and their heirs forever. If my said son leave but one child, as aforesaid, then I give the said farm to him or her, or his or her heirs forever. But, if he leave two or more children, then I give and devise the said farm unto such children, and their heirs, to be equally divided between them. But should my said son, John M. Barr, die without leaving any issue of his body, then, and in that case, I do give and devise the remainder of my estate in the said farm unto my said sons-in-law, William Barr, James Keys, and John B. Enness, and their heirs forever."
The plaintiff in error claims that this clause is an executory devise, and that it gave to Mary Jane Barr a contingent estate, to take effect upon the event of her outliving both her parents, and not otherwise; and that as she died before her mother, no title or interest ever vested in her.
The defendants claim that upon the death of the testator, Mary Jane Barr took under the will a vested remainder, subject to open and let in after-born children, if any there were, and deferred as to the period of enjoyment until the death of the one parent who should survive the other, but liable to no other contingency, and limited by no other qualification.
This point of the will must be examined by its own light, and also in the light of the adjudications in like cases.
Considering it without the aid of authority, we have no *473 difficulty in coming to a conclusion as to its proper construction.
We think that it gives:
1. A legal estate par autre vie, to three sons-in-law in trust.
2. An equitable life estate, with the usufruct of the property to John M. Barr.
3. In case he should die, leaving issue, and his wife Maria should survive him, then an equitable estate for life to her with the usufruct of the property, for the benefit of herself and the surviving child or children of John M. Barr.
4. A vested remainder in fee simple to the child of John M. Barr, living at the time of the death of the testator, subject to open and let in the participation of after-born children, and liable to be devested by their dying before their father, but not liable to be defeated by any other event.
5. The devise over to the three sons-in-law was an alternate or collateral contingent remainder; and if John M. Barr had died leaving no children surviving him, that remainder would thereupon at once have vested and been converted into an absolute fee simple estate.[*]
In no event, except the death of John M. Barr without issue, did the will give them any interest in the property other than the temporary trust estate.
By the vesting of the remainder in Mary Jane Barr, at the death of the testator and the death of her father, this provision in behalf of the sons-in-law became as if it were not. It was utterly annulled, and could not thereafter take effect either as a contingent remainder or as an executory devise. We are satisfied the testator did not extend his vision or seek to control this property beyond the period of the death of his son, John M. Barr. With a view to that event he made two provisions equally absolute, emphatic, and final in their terms. In that respect there is no difference. The result, whether the one or the other should take *474 effect, was to depend upon the single fact whether John M. Barr died with or without surviving children.
The language used carried the entire estate of the testator in the premises alike in both cases, and we can no more hold the word "heirs" to be the synonym of "issue," or otherwise qualify the estate intended to be given in the one case than in the other.
The theory of the counsel for the plaintiff derives no support from the principle of human nature, which not unfrequently impels a testator to transmit his property, as far as possible, in the line of his descendants. Here Barr, Keys and Enness were not of the blood of the testator. He could not but be aware that if they took the property it might pass from them, by descent or purchase, to those who were strangers to his blood, and in nowise connected with his family.
Having disposed of the property absolutely at the death of his son, he left the future, beyond that boundary, with its undeveloped phases, whatever they might be, to take care of itself.
III. We will now examine the case in the light of principle and authority.
A vested remainder is where a present interest passes to a certain and definite person, but to be enjoyed in futuro. There must be a particular estate to support it. The remainder must pass out of the grantor at the creation of the particular estate. It must vest in the grantee during the continuance of the estate, or eo instanti that it determines.
A contingent remainder is where the estate in remainder is limited either to a dubious and uncertain person, or upon the happening of a dubious and uncertain event.
A contingent remainder, if it amount to a freehold, cannot be limited on an estate for years, nor any estate less than freehold. A contingent remainder may be defeated by the determination or destruction of the particular estate before the contingency happens. Hence, trustees are appointed to preserve such remainders.
An executory devise is such a disposition of real property *475 by will that no estate vests thereby at the death of the devisor, but only on a future contingency. It differs from a remainder in three material points:
1. It needs no particular estate to support it.
2. A fee simple or other less estate may be limited by it  after a fee simple.
3. A remainder may be limited, of a chattel interest, after a particular estate for life in the same property.[*]
The law will not construe a limitation in a will into an executory devise when it can take effect as a remainder, nor a remainder to be contingent when it can be taken to be vested.
It is a rule of law that estates shall be held to vest at the earliest possible period, unless there be a clear manifestation of the intention of the testator to the contrary.[]
Adverbs of time  as where, there, after, from, &c.  in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not the time of the vesting in interest.[]
Where there is a devise to a class of persons to take effect in enjoyment at a future period, the estate vests in the persons as they come in esse, subject to open and let in others as they are born afterward.[§]
*476 An estate once vested will not be devested unless the intent to devest clearly appears.[*]
The law does not favor the abeyance of estates, and never allows it to arise by construction or implication.[]
"When a remainder is limited to a person in esse and ascertained, to take effect by express limitation, on the termination of the preceding particular estate, the remainder is unquestionably vested."[]
This rule is thus stated with more fulness by the Supreme Court of Massachusetts. "Where a remainder is limited to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event that must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainder-man is in esse and ascertained, provided nothing but his own death before the determination of the particular estate, will prevent such remainder from vesting in possession; yet, if the estate is limited over to another in the event of the death of the remainder-man before the determination of the particular estate, his vested estate will be subject to be devested by that event, and the interest of the substituted remainder-man which was before either an executory devise or a contingent remainder, will, if he is in esse and ascertained, be immediately converted into a vested remainder."[§]
In 4th Kent's Commentaries, 282, it is said: "This has now become the settled technical construction of the language and the established English rule of construction."[] It is added: "It is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent. The present capacity of taking effect in possession  if the possession were to become vacant  distinguishes a vested from a contingent remainder, and not the *477 certainty that the possession will ever become vacant while the remainder continues."[*]
It is further said in the same volume:[] "A. devises to B. for life, remainder to his children, but if he dies without leaving children remainder over, both the remainders are contingent, but if B. afterward marries and has a child, the remainder becomes vested in that child, subject to open and let in unborn children, and the remainders over are gone forever. The remainder becomes a vested remainder in fee in the child as soon as the child is born, and does not wait for the parent's death, and if the child dies in the lifetime of the parent, the vested estate in remainder descends to his heirs."[]
We have quoted this language because of its appositeness to the case under consideration. The propositions stated are fully sustained by the authorities referred to. Other authorities, too numerous to be named, to the same effect, might be cited. We content ourselves with referring to a part of those to which our attention has been called in the briefs in this case.[§]
This doctrine received the sanction of the Supreme Court of Ohio in Jeefers v. Lampson,[] where it was adopted and applied. The leading authorities relied upon by the counsel for defendants in error in this case were cited by the court and control the result. We are bound by this decision as a local rule of property.
*478 The same doctrine has been sanctioned by this court.[*]
According to the theory of the plaintiff's counsel, if Mary Jane Barr had married and had died before her mother, leaving children, they would have been cut off from the estate. Surely the testator could not have intended such a result.
In three of the cases, substantially like this as to the point under consideration, brought to our attention by the counsel for the defendants in error, this consequence of such a construction was adverted to by the court.
In Carver v. Jackson,[] the court say: "It is also the manifest intention of the settlement, that if there is any issue, or the issue of any issue, such issue shall take the estate, which can only be by construing the prior limitation in the manner in which it is construed by this court."
In Goodtitle v. Whitby,[] Lord Mansfield said: "Here, upon the reason of the thing, the infant is the object of the testator's bounty, and the testator does not mean to deprive him of it in any event. Now, suppose that the object of the testator's bounty marries and dies before his age of twenty-one, leaving children, could the testator intend in such an event to disinherit them? Certainly he could not."
In Doe v. Perryn,[§] Buller, Justice, said: "But if this were held not to vest till the death of the parents, this inconvenience would follow, that it would not go to grandchildren; for if a child were born who died in the lifetime of his parents, leaving issue, such grandchild could not take; which could not be supposed to be the intention of the devisor."
Mary Jane Barr was, at the death of the testator, within every particular of the category, which, according to the authorities referred to, creates a vested remainder.
1. The person to take was in esse.
*479 2. She was ascertained and certain.
3. The estate was limited, to take effect in her absolutely, upon the death of her father.
4. That was an event which must unavoidably happen by the efflux of time.
5. Nothing but her death, before the death of her father, would defeat the remainder limited to her.
6. She had a fixed right of property on the death of the devisor. The period of enjoyment only was deferred and uncertain.
7. The time of enjoyment in possession depended upon the death of her mother. The right was in nowise dependent on that event.
8. Upon the death of her father, she surviving him, her estate, before defeasible, became indefeasible and absolute.
We are thus brought to the conclusion, upon technical as well as untechnical grounds, that Mary Jane Barr had, at the time of her death, an indefeasible estate of remainder in fee in the premises in controversy.
In the view we have taken of this case, the doctrine of shifting uses can have no application; we therefore forbear to advert to the rules of law relating to that subject.
IV. Mary Jane Barr having died unmarried and intestate, it remains to inquire to whom her estate passed.
The descent cast was governed by the statute of December 30th, 1815.
The first section only applies to the subject.
The first part of the fourth clause of that section is as follows:
"4. If there be neither brother nor sister of the intestate of the blood of the ancestor from whom the estate came, or their legal representatives, and if the ancestor from whom the estate came be deceased, the estate shall pass to the brothers and sisters of the ancestor from whom the estate came, or their legal representatives." This gave the property "to the brothers and sisters" of the testator, "or their legal representatives."
The language of this clause is plain and unambiguous. *480 There is nothing in the context, rightly considered, which qualifies, or affects it. There is, we think, no room for construction.[*] We concur entirely in the views of the eminent counsel, whose professional opinions, long since written, have been submitted to us. We think the point hardly admits of discussion. If there could be any doubt on the subject, it is removed by the act of 1835, which substitutes for the rule of descent here under consideration, the one which we are asked to apply. Were we to adopt the construction claimed by the plaintiff's counsel, instead of adjudicating we should legislate. That we have no power to do. Our function is to execute the law, not to make it.
The instructions given by the court to the jury were in accordance with the views we have expressed. We find no error in the record, and the judgment is
AFFIRMED.
Mr. Justice GRIER (with whom concurred CLIFFORD, J.), dissenting.
I cannot let this case pass without expressing my entire dissent from the conclusions of the majority of my brethren, both on the construction of the will of William Barr and the statute of descents of Ohio.
In the construction of a will the first great rule  one that should control and govern all others  is, that the court should seek the intention of the testator from the four corners of his will. All technical rules, from Shelley's case down, were established by courts only for the purpose of effectuating such intention. But it is easy to pervert the testator's intention by an astute application of cases and precedents, of which the present case is the last example of many which have preceded it, and where the testator's intention is entirely defeated by the application of rules intended to effectuate it. The remainder in fee to the children of John M. Barr was not to vest till the decease of Maria Barr. "And upon the decease of said Maria, I devise the remainder of *481 my estate to the legitimate child or children of John M. Barr and his heirs forever, remainder over to the testator's sons-in-law in case of failure of such issue of the son." Such is the language. By construing the remainder to vest before "the decease of Maria Barr," the executory devise to the sons-in-law is entirely defeated, and the clear intention of the testator frustrated by factitious rules intended to facilitate its discovery.
It often happens that legislative acts require the same liberal rules of construction as wills, where the testator is presumed to be inops concilii. It only requires the reading of the fifth section of the statute before the fourth in order to effectuate the intention of the legislature, and to clear it from the absurdity of giving an intestate's estate, not to his next of kin, but to his brothers and sisters, instead of his own children.
NOTES
[*]  4 Kent's Com. 334, 335; Brydges v. Brydges, 3 Vesey, Jr., 127; Cholmondeley v. Clinton, 2 Jacob & Walker, 148; Brydges v. Duchess of Chandos, 2 Vesey, Jr., 417, 426; Walton v. Walton, 7 Johnson's Chancery, 270; The City of Cincinnati v. Lessee of White, 6 Peters, 441.
[*]  2 Jarman on Wills, 156.
[]  4 Kent's Commentaries, 233; see also Webster v. Cooper, 14 Howard 499; Neilson v. Langow et al., 12 Id. 110; Doe ex dem. Compere v. Hicks, 7 Term, 437; Curtis v. Price, 12 Vesey, Jr., 99; Morrant v. Gough, 7 Barnewall & Cresswell, 206; 1 Greenleaf's Cruise, 359, note.
[*]  Luddington v. Kime, 1 Lord Raymond, 203; Dunwoodie v. Reed, 3 Sergeant & Rawle. 452; C.J. Gibson's opinion.
[*]  2 Blackstone's Commentaries, chap. 12.
[]  Johnson v. Valentine, 4 Sandford, 43; Wrightson v. Macaulay, 14 Meeson & Welsby, 214; Chew's Appeal, 37 Penn. 28; Moore v. Lyons, 25 Wend. 126; Phipps v. Williams, 5 Simons, 44; Gold v. Judson, 21 Conn. 622; Redfield on Wills, 379; Finlay v. King, 3 Pet. 374, 5 Barr, 28; Carver v. Jackson, 4 Pet. 92; Purefoy v. Rogers, 2 Saunders, 388; Doe v. Morgan, 3 Term, 765, 766; Nightingale v. Burrell, 15 Pick. 110.
[]  Johnson v. Valentine, 4 Sandford, 43; Moore v. Lyons, 25 Wendell, 119; Boraston's Case, 3 Coke, 20; Minnig v. Batdorff, 5 Barr, 506; Rives v. Frizzle, 8 Iredell's Equity, 239.
[§]  Johnson v. Valentine, 4 Sandford, 45; Doe v. Provoost, 4 Johnson, 61; Chew's Appeal, 37 Penn. 28; Doe v. Ward, 9 Adolphus & Ellis, 582, 607, 4 Dow, 203; Doe v. Nowell, 1 Maule & Selwyn, 334; Bromfield v. Crowder, 1 New Reports, 326; Phipps v. Ackers, 9 Clark & Finelly, 583; Doe v. Prigg, 8 Barnewall & Cresswell, 235; Minnig v. Batdorff, 5 Barr, 505; Gold v. Judson, 21 Conn. 623.
[*]  Chew's Appeal, 45 Penn. 232; Harrison v. Foreman, 5 Vesey, 208; Doe v. Perryn, 3 Term, 493; Smither v. Willock, 9 Vesey, 234.
[]  Comyn's Dig., Abeyance, A.E.; Catlin v. Jackson, 8 Johnson, 549; Ekins v. Dormer, 3 Atkyns, 534.
[]  Preston on Estates, 70.
[§]  Blanchard v. Blanchard, 1 Allen, 227.
[]  Doe v. Prigg, 8 Barnewall & Cresswell, 231.
[*]  Williamson v. Field, 2 Sandford's Chancery, 533.
[]  Page 284.
[]  Doe v. Perryn, 3 Term, 484 (Buller's opinion); Right v. Creber, 5 Barnewall & Cresswell, 866; Story, J., in Sisson v. Seabury, 1 Sumner, 243; Hannan v. Osborn, 4 Paige, 336; Marsellis v. Thalhimer, 2 Id. 35.
[§]  Harrison v Foreman, 5 Vesey, 208; Belk v. Slack, 1 Keen, 238; Bromfield v. Crowder, 1 New Reports, 325; Danforth v. Talbot, 7 B. Monroe, 624; Goodtitle v. Whitby, 1 Burrow, 234; Moore v. Lyons, 25 Wendell, 119; Randoll v. Doe, 5 Dow, 202; Edwards v. Symons, 6 Taunton, 214; Phipps v. Ackers, 9 Clark & Finelly, 583; Stanley v. Stanley, 16 Vesey, 506; Doe v. Nowell, 1 Maule & Selwyn, 334; Boraston's Case, 3 Coke, 52; Doe v. Ewart, 7 Adolphus & Ellis, 636; Minnig v. Batdorff, 5 Barr, Pennsylvania State, 503.
[]  10 Ohio State Rep. 101.
[*]  Finlay et al. v. King's Lessee, 3 Peters, 376; Carver v. Jackson, 4 Id. 1; Williamson et al. v. Berry, 8 Howard, 495; Croxall v. Shererd, 5 Wallace, 280; see also Washburn on Real Property, 229, and 1 Greenleaf's Cruise, tit. Remainder.
[]  1 Peters, 1.
[]  1 Burrow, 233.
[§]  3 Term, 495.
[*]  Armstrong v. Miller, 6 Ohio, 124.
