This action was commenced" in the city court of Brooklyn, on the 22d day of May, 1861, for the recovery of a lot of land lying in the city of Brooklyn, being a part of a large tract formerly owned by Samuel Jackson. He, by a deed hearing date the 15th day of February, 1832, granted and conveyed the whole of said tract to John *494Jackson, named therein as party of the second part," for and during his natural life, and after his decease to his heirs and their assigns,” with a habendum clause in the following terms, viz: “ To have and to hold the above granted, bargained and described premises, with the appurtenances, unto the said party of the second part, for and during his natural life, and after his death, then to his heirs and their assigns, to their own proper use, benefit and behoof forever.” This deed contains the usual covenants of seisin, and for quiet possession, and against incumbrances, and also contains a covenant by the grantor, for the further assurance of the premises intended to be granted “ to the said party of the second part, his heirs and their assigns,' after the natural life of the said party of the second part forever,” and a covenant of general warranty thereof “ unto the said party of the second part for and during his natural life, then to his heirs and their assigns forever.”
John Jackson, on the 25th day of April, 1848, had eleven children, who, if he had then died, would have been his only heirs at law; and he on that day executed a deed with full covenants and warranty to those children, purporting to convey a large tract of land, including that in question, for the consideration of one thousand dollars. Subsequently, and on the 14th day of August, 1848, those children made a partition among themselves of the land so conveyed by their father, and executed deeds to each other with covenants for quiet and peaceable possession, to carry the same into effect. A number of lots, including that sought to be recovered in this action, were thereupon conveyed to Parmenus and Edward Jackson, two of the sons, by their brothers and sisters, and other lots were in like manner conveyed to Rosetta Jackson and Fanny Jackson,.two of the daughters. The said Par-menus and Edward Jackson afterwards, and on the 1st day of May, 1848, executed a mortgage purporting to convey the same in fee to William Beard, to secure the payment of three hundred dollars, with interest. That mortgage was subse*495quently foreclosed, the lot was sold on such foreclosure, and the mortgagee, the said William Beard, became the purchaser thereof, who afterwards, and on the 1st day of February, 1855, conveyed the same to Herbert T. Moore, the plaintiff.
Fanny Jackson, one of the said daughters, after the said partition deeds were executed, was lawfully married to Parker Baldwin, and continued his wife until the 3d day of June, 1859, when she died, leaving Fanning Baldwin her only child and issue, her surviving, who was born February 21st, 1859, and was living when this action was tried. Subsequent to the death of the said Fanny, and on the 5th day of March, 1861, the said John Jackson, her father, died, leaving all of said children except the said Fanny, his survivors.
The defendant claimed to hold the premises in question as tenant of the said Parmenus Jackson, and put the title of the plaintiff, who claimed the same in fee simple, in issue. Upon the facts above stated, the city judge, who by the consent of the parties tried the issue without a jury, decided that the plaintiff, on the 18th day of February, 1855, was possessed of the premises in question as the owner thereof in fee simple, and that the defendant, on the 1st day of May, 1860, evicted him, and unlawfully withheld the possession thereof from him, and directed judgment for the plaintiff.
This judgment was, in our opinion, erroneous. It was evidently the intention and object of the deed of Samuel to convey to John Jackson a life estate only; and as it was executed subsequent to the time the revised statutes took effect, it must be construed by the rules prescribed thereby. They expressly provide (1 R. S. 725, § 28) that “ when a remainder shall be limited to heirs, or heirs of the'body of a person to whom a life estate in the same premises shall be given, the persons who on the termination of the life estate shall be the heirs, or the heirs of the body of such tenant for life, shall be entitled to take as purchasers by virtue of the remainder so limited to them.” This provision abrogates the rule in Shelley’s case, under which J ohn J ackson would have held the *496title in fee as absolute owner) and his heirs could only have claimed by inheritance from him. He, by his deed, could only convey the life estate held by him, and as he did not die till the 5th day of March, 1861, that estate under his deed to his children, passed and became vested in them.
The question is then presented, whether those children had any estate or interest in the remainder during the lifetime of their father, the tenant for life. The limitation in the deed is to his heirs, and by the provisions above recited it is declared that in such a case the persons who, on the termination of the life estate, shall be such heirs, shall be entitled to take as purchasers, by virtue of the remainder so limited to them. The term " heirs” is thereby changed from a word of limitation to one of purchase, and a mere descriptio personarum, or specific designation of the individuals who, when the life estate determines, shall have the right to the possession and enjoyment of the property. . Until that event ceases there is or can be no person in existence that answers to or falls within the description or class of persons designated; nemo est hceres viventis; and therefore no persons can stand in the relation of heir, or fall within the meaning of that term, until the death of the tenant for life; and upon that event the remainder becomes vested in possession. There is, nevertheless, by the very terms of the deed, an estate in remainder, created at the time of its delivery. It is, however, one in expectancy merely, limited by the terms of the grant to take effect or commence in the possession at a future day, (on the death of the tenant for life,) and it is therefore denominated a future estate. • Such estates are said to be vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which, they are limited to take effect, remains uncertain. (See 1R. S. 722, §§ 7, 8, 9, 10, 11, 13, 28.)
In the case under consideration, there was no person in be*497ing during the lifetime of John Jackson, as before stated, who stood or could stand in the relation or character of heir to him and consequently no one who could be said to have an immediate right of possession to the land, on the termination of his life estate. "Until that event, it remained unknown and uncertain what persons would be his heirs, and entitled to take. The remainder limited to them was therefore a contingent future estate. Such appears to be the construction put on section 28, above referred to, by Chancellor Kent, in his Commentaries, vol. 4, p. 232. He there, after quoting the section, and saying that the rule in Shelley’s case was thereby abolished, says : “ The abolition of the rule applies equally to deeds and wills, and,in its practical application it will, in cases where the rule would otherwise have applied, change estates in fee into contingent remainders.” (See also Campbell v. Rawdon, 18 N. Y. Rep. 416.)
Assuming then that the said children had such an estate, the operation and effect of the partition deeds executed between them remains to be considered.
It is provided by the revised statutes, (vol. 1, p. 725, § 25,) that “ expectant estates are descendible, devisable and alienable, in the same manner as estates in possession.” In these are included contingent estates in remainder. (Id. p. 722, §§ 7 to 11, 13, before referred to.) Their contingent estate in remainder was therefore alienable, and it was competent for them to convey the same as well as the estate for life of John Jackson, which had become vested in them at the time their deeds were executed. They were then of full age, and competent tó convey and enter into the covenants contained in those deeds. Those executed to Parmenus and Edward Jackson conveyed all the estate and interest of their brothers at that time, to them, and the mortgage from them to Beard passed to him this as well as that which was held, or to which they were entitled, in their own right; and the plaintiff, under the proceedings in foreclosure of that mortgage, *498and by the deed of Beard to liim, became the owner, entitled to the same rights. (See Lawrence v. Bayard, 7 Paige, 76.)
[Orange General Term, September 14, 1863.All of those children, except Fanny Baldwin, survived J ohn Jackson, their father; and they, with Fanning Baldwin, the only issue of Fanny, on his death .became and were his only heirs at law, and their estate, which had before been contingent, became vested in possession and absolute; and thereupon the plaintiff became the owner in his own right in fee simple of all the estate in the lot in question, except the share (being one-eleventh part) in which Fanny Baldwin until her death, had a contingent estate. That estate determined by her death and upon the death of John Jackson, Fanning Baldwin, who was one of the heirs at law, became vested with the title to that share in fee simple, as purchaser, under the deed to Ms grandfather, and not as heir at law to his mother. Her covenants do not, therefore, affect the title.
The result of the views above expressed is that the plaintiff was entitled to recover ten-eleventh equal parts of the lot in question, being the shares of the surviving children of John Jackson, but that he had no right to the share of Fanning Baldwin (the other eleventh) which had become vested in Mm before the defendant entered into the possession of the premises, and which was then and has continued to be, outstanding.
The judgment, as to that, is therefore erroneous, and must for that reason be reversed ; and a new trial is ordered, costs to abide the event.
Brown, Scrugham and Lott, Justices.]