In my view of the statute of descents, it is not material to determine the point made by Schermerhorn’s counsel, that his wife Mary Ann, took an estate in fee under the will. The case relied upon, Kingsland v. Rapelye, (3 Edw. Ch. R. 1,) is a strong authority in his favor. But the devise here is distinguishable from the one in that case, in two important features. The property is vested in trustees, who were to retain the entire legal estate until the youngest of Leonard Beeckman’s children attained his majority; and the trustees were empowered to apply the capital of. the estate, as well as the income, for the use of all the children in the mean time.
Waiving the consideration of this point, my construction of the will is, that without regard to the nature of Mrs. Schermerhorn’s estate, and-assuming for this purpose that it was not vested ; .on her death, her son took a vested, absolute estate in her share of the property.
The terms of the" will are explicit, that in the event which happened, “ the share of such deceased child shall be conveyed to the lawful issue of such child.”
*184There is no condition imposed that the issue shall continue alive till the majority of Leonard Beeckman’s youngest child. That period is fixed for the termination of the trust estate, and for consequent actual possession of the parties entitled. It has nothing to do with the vesting of the interests.
When Mrs. S. died, leaving issue, there Avas a determinate person, in whom the estate Avas fixed, to remain after the particular estate vested in the trustees was spent. The interest of her daughter was no more contingent, than is the estate of B. in the very common devise to A. for life, with remainder to B., in fee. Unless B. survives A., he Avill never come into possession; but he has a vested remainder, which will descend to his heirs precisely as if he were in its actual enjoyment.
There is no devise over, upon the death of the issue; and this furnishes another reason, if any were necessary, for holding the interest of such issue to be vested.
As to the personal estate, Roebuck v. Dean, (4 Bro. C. C. 403, S. C. 2 Ves. Jr. 265;) is directly in point, to show that it Arested in the son of Mrs. 8. on her death. To the same effect are Skey v. Barnes, 3 Mer. 335; and Harrison v. Foreman, 5 Ves. 207. The latter is in favor of the position that Mrs. S.’s interest was vested; liable to be divested on the contingency of her death before her youngest brother became of age. And see Locker v. Bradley, (5 Beav. 593 ; S. C. 6 Lond. Jur. R. 1098.) In Sturgess v. Pearson, (4 Madd. 411,) the bequest was of the income to A. for life, and after her decease, to be equally divided among her three children, or such of them as should be living at her death, to be paid to them at their age of twenty-one years. A. survived all her children. ¡Sir John Leach. Y. "C. held that all the children took vested interests, which passed to their representatives.
In regard to the real estate; the child of Mrs. S. at her death, took a vested remainder in fee, beyond all question; assuming still that Mrs. S. had only a contingent or defeasible „estate herself. In Williamson v. Field's Executors and Devisees, (July 21, 1845,(a)) I examined this subject much at large, and refer*185ring to that case, and the treatises, I will dismiss the point. (2 Cruise’s Dig. 260, 270, 271; Title, Remainder, Chapt. 1; 1 Preston on Est. 64, 67; Doe v. Perryn, 3 T. R. 484.)
When the child of Mrs. Schermerhorn died, he was seised in fee of one sixth of the real estate, and absolutely entitled to one sixth of the personal property remaining in the hands of the trustees, for Leonard Beeckman’s children; subject to the trust while it was to continue. His father was entitled to his personal estate under the statute of distributions.
He also took the real estate of his son, pursuant to the provisions of the statute of descents, as amended in 1830. (1 R. S. 751, § 5 ; Laws of 1830, ch. 320, s. 13.)
There must be a decree, declaring the construction of the will accordingly, with costs to the respective parties out of the personal estate.
Since reported in 2 Sand. Ch. R. 531.